uh"; Nil? N19 THE SUPREME COURT 2018 No.12 MCA IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 2014 Between:- UNIVERSITY COLLEGE CORK Respondent/ Appellant THE INFORMATION COMMISSIONER Appellant/ Respondent AND RAIDIO TEILIFIS EIREANN Notice Party SUBMISSIONS OF THE INFORMATION COMMISSIONER INTRODUCTION 1. If an entity fears that it will suffer harm as a result of commercially sensitive information being released under the Freedom of Information Act, 2014 (?the Act?), one would expect at least two things:~ 0 First, that it would exp/m}: to the Information Commissioner, when requested to do, bow it would suffer such harm. 0 Second, and even more basically, that it would identg?z, when requested, what precise z'zy?bmatz'orz in the relevant records was suggested to be commercially sensitive. 2. In this unusual case, the Respondent for reasons known only to itself, did not do either of these things. 3. Despite this, appeal under 5.24 of the Act from the decision of the Information Commissioner (?the Commissioner?) of 13 December 2017 (?the Decision?) was upheld in the High Court?s judgment of 03 April 2019 (?the Judgment?). 4. These submissions are conscious of this Court?s comments at 3312 of its Determination regarding the need to .. amen? that the argument: {bit care are no! mmacermri?z dapfz'a'ar?ed? with those arising in the appeal of the Court of Appeal?s judgment in Aflimlrz?er ?r Baggy and Nature! Rename: 2! I zy?brmaz??on Commissioner [2019] IECA 68 (?Enet). 5. The Decision varied internal decision on foot of the request of the Notice Party for a review of refusal to release four1 records concerning the relationship between UCC and the European Investment Bank The Decision directed the release of all four records, save that information pertaining to third party companies was to be redacted from Record 3. Finance Agreement between UCC and the EIB (the ?Finance Agreement?). Both in the Decision, and in the run-up to it, the Commissioner noted that imposed an onus on public bodies to justify a refusal to grant an FOI request. 6. Bursar and Chief Financial Of?cer decided that the relevant records were commercially sensitive under of the Act. This was upheld in an internal review. 7. A cursory review of both these short internal decisions (quoted at ?21 and ?24 of the judgment) reveals that the effect alleged on UCC itself was entirely derivative. 1 A ?fth rec0rd fell outwith the request as it did not relate to the EIB. In other words, unspeci?ed .. prgadzre {90] {be mmpetitiae pantie}: t/Jz?rd paras: (presumably the BIB) was asserted, which ?it: ram?would affect UCC 8. When the Commissioner made contract with the BIB, it become clear that vicarious anxiety for the interests was not shared by the BIB itself. At the litigation stage, UCC therefore reverse-engineered the focus of its opposition to disclosure, introducing before the High Court impermissibly and over the Commissioner?s objection - an array of new points not ventilated before the Commissioner. 9. The most UCC was able to secure from the E18 - extremely late in the day was a letter of 8 May 2018. Far from assisting UCC, this tends to suggest a View on the part of EIB that UCC had not actually yet demonstrated that any information in the Finance Agreement was commercially sensitive at all. The letter stated inter alia: ?Tbe Bank, padim?ar consideration (ff prerampz?iatz of dirt/0mm a: re! out in A?z'de. 5.1 (yr the BIB Transparency Policy] maid agree to radar! More part: if Me ?nance contract zabm UCC can man/2 mama?s ream?; z?Zz?arlmi?z?ag {be me: r?kdwum wozdd pose to UC commercial! intently. (emphasis added throughout these Submissions unless otherwise stated) 10. guarded approach is in fact on all fours with the detail that the Commissioner sought, but did not receive, from UCC. Incidentally, it is also wholly congruent with the onus of justi?cation under of the Act, which the Commissioner submits applies in this case. ISSUES a) Was UCC entitled to raise, and succeed on, grounds which it had nor raised before the Commissioner.32 2 Ground 3, Notice of Appeal b) Did the Judgment correctly hold the Decision erred in applying of the Act3 (the legal substance of this issue is dealt with in the Enet submissions). c) Did the Judgment apply the correct standard of review on appeal, or instead essentially replace the Commissioner?s Decision with its own, and (ii) did it apply the correct statutory test under 5.36 of the Act.?[ (1) Was the judgment correct in ?nding a statutory interpretation error and a failure to have regard to relevant considerations.5 e) Did the Judgment err regarding the issue of the interest rate.6 0 Did the Judgment err regarding Records 2 to 4.7 JUDGMENT APPEALED FROM 11. The Judgment holds there to be two errors in the Decision: taking as its ?Hmong point? a requiring to flu/#5361 Ibe ny?um/ qf 5mm? and (ii) that it ?mineral-two and/or Wrappers [be rompetz'z?z've pry?zrdz?ce? exemption under 88). 12. Noting that the Decision?s Findings meant that it did not need to consider the public interest balancing test in the judgment remitth the matter to the Commissioner . Jo remmz?der and to decide {gm yfbe?ndz?ttg: m? cm! in s89). 13. Respondent?s Notice declines8 to rely on any matters not set out in the Judgment. Accordingly, diese are the only alleged infirmities in the Decision 3 Ground 2. 4 Ground 4, 5. 5Grounds 1,5, 6. 5 Ground 9, also 7, 8, 10. 7 Ground 10, also I. 3 Appendix, Section 3. which are at play? although there are several matters encompassed within the second broad error found by the High Court. If UCC sought, and were permitted, to raise any further issue, the Commissioner would seek the right to separately respond. 14. The judgment is best further dealt with under the headings of the various errors which the Commissioner respectfully contends arise. ARGUMENTS NOT MADE TO THE COMMISSIONER 15. The IAf?davit of Mr. Collins of UCC, and High Court Written Submissions, were replete with new material entirely absent from submission of 7 September 2017 to the Commissioner. The examples are in fact too numerous to list, but include: a) Various matters regarding covenants, including some which the Judgment expressly noted were expo?az'tzed @y roamez??ir UCC bearing b) Mr. Collins? assertion") that it would be ?jpom?b/e to airman?? the interest UCC pays to each private financial institution in the event of disclosure of (seemingly) ?Record: 24?. c) That EIB was/ is in discussions with NUI Galway. d) The alleged effects of disclosure of Article 10 of the Finance Agreement. e) References to a ??247 Mir/Zion? development programs and UCC going to the market ?lcwce curler? for borrowings. 9 It is therefore quite clear that any other issues, such as regarding fair procedures, are not at issue in this appeal. '0 ?l65, Grounding Af?davit. 16. The plethora of impermissible new submission and evidence which was the subject of no adverse comment much less ruling by the learned judge can only have influenced the outcome in thejudgrnent. 17. However, there are certain new arguments/ material which give rise to speci?c and signi?cant concern. 18. ?12 of the Commissioner?s Points of Opposition noted: approach adopted if)! ?re/21mg germ to the record: their wiring; and new parting ?vejbre (be com? yew'om qf #96 records wit/J redaction: which UCC new contend: rm arcabtabk to if (ambit/J did so: Q24: tartan? {be Regandem": O?zcel if eating: irzappropn'ate. I 19. In this regard, while EIB put a redacted version of Record 1 before the Commissioner prior to the Decision being reached, no redacted versions of Records 2-4 were adduced, until UCC exhibitedl2 same for the first time in its grounding af?davit. This is an extraordinary position. 20. Absolutely key to the judgment is the redacted version of the Finance Agreement EIB sent to the Commissioner. The Judgment held that a comparison with the unredacted version . . bar afiowed that mud topz'ngoz'nt {be (ii are 21. However, regarding whether this ?information? was actually in dispute before the Commissioner, UCC never identi?ed any redactions to the Commissioner a particularly serious failure given the provisions of 5.18 of the Act. Nor did it ever inform the Commissioner that UCC was endorsing the redactions until after the Decision was handed down and only through its pleadings in this litigation. 1? See also ?39, Commissioner?s ?rst af?davit '2 ?181, grounding af?davit. 22. Even then, the redacted version of Record 1 (the Finance Agreement) exhibited by UCC was not the same as the redacted version which the EIB had put before the Commissioner, as was noted in ?21 of the Commissioner?s ?rst affidavit.l3 23. submissions to the Commissioner did not reference any specific articles or sections of the BIB Finance Agreement other than somewhat bizarrely - Article ll, which concerns choice of law. Article 11 is entirely irrelevant, as demonstrated by it not being relied upon by UCC in any way at the hearing. 24. It is accepted that the EIB redacted document was in issue before the Commissioner; indeed, contrary to the Judgment?s holding that there was a failure to have regard to it, it is expressly referred to in the Decision. HOWever, subsequent reliance in litigation upon the redactions was a argument by UCC which it is not entitled to make on a statutory appeal. 25. That fact the argument was new was recognised in the Judgment, even if its consequences were not. For example: 0 ?7 of the judgment noted that UCC only adopted the redactions once the High Court litigation had been initiated, referring to this as ?1796 pastime adopted tbe?pagbom? (jibe Ifdf?fdfl?l? @2066?! (a the Court ?41 expressly referred to change of 905232011 wiper: aft/1e redacted documeari?, noting ?Tbe petition adapted 2'12 the appeal bezore this court is that the remedy rhea/d be rte/eased in redacted?rm?. ?43 noted: ?The change in pariah}: {be rah/Er! (if redeem trimmer?! .63! comma! or: beba?qu?ke fig/imitation ommirriorzar and an bebaffcy?RTE.? 26. The Commissioner submitted UCC was not entitled to rely on redactions, noting at ?79 of its High Court submissions: ?3 While ?21 noted the differences were ?limitecf?, the point is that the redacted documents were not the same. ati?e centered: that it me attack tbe Bedtime based at: (zempeaj?ied) ?jbez'nte? whit/J were ?bbezezes? free): the submissions?. However; this tame! be mended mitt):- Mae/{seer 1r in Rotunda Itatz'zzg that em appettmet were ?bbtg'ged to b??g?mmrd ate/point: of tee? spate which it wished to rety?i' [?261 of that judgment] 0 Mr. Cotte'm aeement that the reason: We} the mar-d: ought to have been exempted from dz'eetemre were set 032? fed!? it? correipandenee with RTE and in UC ?s submission: to the Commtw'e?er. 27. The judgment does not rationalise running of a new case in this way; rather, it seems to simply permit it, without comment.? 28. Conscious of the Determination, the case law in the Bee! submissions on new arguments is relied on but not repeated. 29. Even Kelly Information Comm'ssioner [2017] 3 IR 381, cited by UCC in support of its alleged entitlement to rely on redactions (desPite concerning entirely different issues), and referenced at ?43 of the judgment, if anything, supports the general position prohibiting new arguments. McKechnie J. stated s68): have :20 deztet but that the type (yr/Emit); eem'mged this promise: 3.34 of the 1997 Act concerning review by the Commissioner, not the provision for appeal to the High Court] can art/y tee embed at where the dame}: tender review, retatz'ee to the gamed; of @Deez/ cede/meted, I'm; been fatty egtored, whether we}; involve; twee: effect, of team, or other mattersDespite High Court submissions accepting any appeal must be limited to points previously made to the Comm issioner." 30. 31. 32. 33. 34. 35. Moreover, of the Act expressly requires a public body to give ?reoioni?ir foe re?ne? of access including ?e'oe ?nding; on any Marlene! timer relevant to in degree): ondparfz'm/ori efmy molten pedaling to {be poo/2'6 z?m?erert taker: into oom?z'denzz?ion .. . That duty clearly cannot be discharged for UCC by EIB. Although the Commissioner submits that the Court of Appeal in Erie! erred in permitting new arguments to be advanced, it is striking that UCC would even fail to surmount the test posited by Birmingham P. (MS): While I would earz'regy agree we who! I idem'z? or the philosophy aaderjyz'og ewes web or {be Rom/Ida core and {be food) Warm: Hedi/9 Board ease that Mott/d be cg?ered reporter; to {5015! back points, I do no: that robot happened here. Here, by contrast, UCC cannot be viewed as having done anything other than ?holding back? the very redactions upon which it later sought to rely. Moreover, part of P?s reasoning focused on the fact that "The High ozm? box 1'72 foot m/ed on the firm ood I'm: rg??er?ed a determination on an issue (j eomideraoe'e Mpon?mzee such that the Court of Appeal had to rule on the merits or else . Joe High Cozzrt'i raring would be rendered immune ?ow appeal? That argument obviously cannot be brandished here given the judgment is at first instance. THE ISSUE Although it is recognised that Beet was binding on the High Court judge, it is submitted that he was led into error by Boer, which in turn had endorsed Macken j?s obiter dicta in Governors and Guardians of the Hospital for the Relief of P00: Lying-In Women :2 Information [2013] 1 IR 1 (?Ratunda?). First, as in Beer, when seeking submissions, the Commissioner informed UCC that applied and UCC never took issue with that, until the litigation stage. 36. 37. 38. When UCC put s.22(1 2) in issue in its High Court submissions, the Commissioner responded noting that UCC was not entitled to agitate the applicability of 5.2202) before the High Court given that it never demurred from the Commissioner?s statements to it that 3.2202) applied,15 and citing case law against new arguments such as Rotunda. In initial oral submissions, UCC did not pursue the presumption issue in light of Noonan J?s judgment in Brief. However, after the Court of Appeal?s judgment in Brief, a further oral hearing of these proceedings was convened. The Commissioner at this oral hearing did not hold UCC to its prior abandonment at the earlier oral hearing - of the presumption ground of appeal. However, the fact that an oral submission was not objected to in those circumstances did not, and does not, alter the fact that applicability was never disputed in the process before the Commissioner, and therefore properly fell without the statutory appeal entirely. Therefore, as a matter of law, UCC was not entitled in its statutory appeal to dispute the applicability of 5.2202) to its case.16 Nonetheless, the Commissioner recognises that it would be unsatisfactory if this appeal and Bare! were 199$ determined on solely this ground. That would mean that the uncertainty regarding whether actually applied regarding exemptions would subsist and would soon trouble the Courts again. Thus, while the Commissioner requests this Court to rule for it in principle or in substance ,r on attack on the applicability of being an impermissible new argument, the Commissioner?s greater concern is with the merits of the wider issue, which it invites the Court to determine regardless of its conclusion on the ?new argument? issue. Regarding the substance of the issue, and conscious of the Determination, the Commissioner relies on, but does not repeat, the relevant arguments in the submissions. '5 ?1 14, Commissioner?s High Court Submissions. '5 For the avoidance of any doubt, the prohibition on new arguments in statutory appeals extends to purely legal arguments, such as regarding 5.2202) (see e.g. Macken J, in Rotunda (?26i) and Brandon Medical Hall Limited Pensions Ombudsman unreported, 21 December 2010, per Dunne at p.18). 10 39. Two discrete points might be noted however: 0 First, the Commissioner submitted on the resumed High Court hearing that neither Macken J. in Ramada nor Beet had had regard to which clearly indicates that the presumption of disclosure applies to exemptions (because it references 35.35-37, which are exemption provisions). The Judgment, noted, but did not determine this argument, merely observing (correctly) that: ?Tire alignment re: ?lm: as part oft/M Court (y'Appealir jadgmeet With respect, that is precisely the point, and affords a reason why this Court should not endorse Beef. 0 Second, the confusion apt to arise out of Macken J?s obiter dicta is well exemplified in their application at ?50 of the Judgment here - i.e. {be metered/e eftbz'yjmigmeat We once a record comer m'tbirz a mandateg)? exemption, were zit 7:0 additz'am! mqez'remee! to the decision fa refme diice'omre? (see also The Commissioner disputes that the Decision demanded any ?additional? justi?cation beyond UCC being asked to justify that the record did in fact ?came M'tbi?? ?50 of the Judgment begs, rather than answers, the question of how it is to be assessed that a record ?comer reef/yin a mandarin: exemption?, and how the Commissioner is to assess that. This can only sensibly be achieved, by the public body in the ?rst instance explaining how particular parts of the records are contended by it to engage the exemption at issue in other words, explaining why the decision it has made to such effect is justi?ed. INCORRECT APPLICATION OF THE STANDARD OF REVIEW AND OF THE TEST IN itaezdard at Renew 4-0. The Judgment? approach including the repeated references (for example at ?ll and ?6l) to what the Judge considered to be seer-mama commencing); Iemitiee? material - ?rst misapplies the proper standard of review on an appeal under 5.24 of the Act (such that it effectively replaces the Decision with the Judge?s own), 11 and secondly even then fails to have proper regard to the. statutory terms of the relevant exemption, 41. The Judgment seems signi?cantly out of kilter with the approach in other FOI cases, including in Sbeedy Information Comnulsszouer [2005] 2 IR 272. There Kearns j.?s majority judgment, dismissing one of the points of appeal, was content to defer to the Commissioner?s review of the records, stating 682): . .Hoze'rtg examined tbe content; of tbe reports, be [the Commissioner] was tbm? it: a petition to Hate tbat be was strati?ed tbot dad not contain orgy z'tgfomatzob tbat mold be said to booze beet: zebparted to ee'reoemtaotet imposing on obb?gotz'oo of coty9deme or booing tbe neoeng/ qua/2t): of con?dence about it. He fie/t tbot by virtue tyre. 26(2) oftbe Act of 7997 tbe exemption to 26(1) could not ope. 42. The position in other statutory appeals may also be instructive. In Fmancial Services Ombudsman [2015] IECA 126, Finlay-Geoghegan j, admittedly in a somewhat different context, stated ?It is not Ibemz'm'bte for tbe Hz'gb Court on at: tabbed! pursuant to J25 7 CM to ?exabziee qti'etb? a contractor?! construction pbzeed by tbe Ombodmmo on a retemzzt term of toetmet. Rotber be oboe/d comz'der wbetber em appellant bot ertobb'tbed on tbe botooee of probobz'btzet tbot ob tbe watered/t beyore bite tbe Ombudsman? eotzetmetzon contain; a renew error. 43. There is uncertainty as to precisely how such formation by a judge of his own view of the documentation on what is an appeal on a point of law only - interacts with, FP Information Commissioner [2019] IECA 19 wherein Peart]. stated ?T'be't debited [one oi cameo! oeder 5.42 of tbe Act, being con?ned to a poz'rzt of tow. Tbe Cot-(rt bot beeo re?tted to tbe reteooat outborz'tiet Motion to tbe to tobzeb tbe court bearing m; oppeo/ on a point of tow my: totemeoe. 12 Tbere aatbm?z'e; are rel??rlb above? wbieb I mpeegfaigr era/am?. I I a eiebr?em tbeie ebb! maxidemb/e deference we?! be e?rded to rm expert detainee?maker meb a: z?be oeemzlriz'eizer, ibat a eerie margin of @brea?atz'aa wit? be Wrded lo bz'm, being tbe person tube bar, by; tbe Act, been ebmged tbe making qf den?mm in reietz'oa to request: reader 5. 7 qf {be Act. It not Iii/linear, ever) were it Ia be {be case, (be! be tbe exem'ie at Ibe Jame damage tbe com? bearing an gagged! might itself haze reached a (life-rent Tbere mm be a clear error afiaw enabler/bed 44. This accords with the principles governing full statutory appeals, i.e. those not limited to a point of law. Orange Director of Telecommumicaabns Regulation [2000] 4 IR 159 holds that appellants must show that .. ebbing tbe mammal: pram: a; a wboie, tbe dea?n'on rem'bed am aerated by e2 smear and I?gbg?eaat emcee" or a reefer of web mum? (Keane CJ). This has been endorsed regarding the Financial Services Ombudsman (eg. Miller; also Govemey F50 [2017] 3 IR 144, ?33, where that test was not disputed before the Supreme Court, and Hayes F50, (unreported, 3 November 2008) where MacMenarnin J. stated at ?29: .. Lear ebb! tbere may be a emar {fit wz'e?bibgz'amdz'etion It has also been endorsed regarding the Data Protection Commissioner (Shatter VDPC [2017] IEHC 670, ?24, again without dispute). 45. The threshold for success against a statutory adjudicator on the narrower appeal on a point of law clearly cannot be any less exacting. 46. The Commissioner frequently deals with reviews concerning alleged commercially sensitive information and can fairly be considered an ?expert deer'rz?erz ember? whose decisions are worthy of judicial deference. 47. In order for an alleged error of factual assessment here failing to appreciate the allegedly ?self-evidently? commercially sensitive nature of the tedactions to amount to an error of law, this Court has indicated that a very high threshold must be reached:- ?7 This is clearly a reference to ?50 of FF, which referred to the Beefy, Ki'llilea, Sheedy, Wesneood and McKiHen judgments. 13 In E'tzgibeH SOCIbWClarke J. (as he then was) discussing situations where a factual conclusion might entail an error of law, stated @128): ?Tbere may have been no evidence 3'0 Water? a ?eeting or z'zy?eremei may have been dream we :befm?i when no (teatime?maker eazdd fem/e dmwa In Heady, Kearns J. stated 679): "Once there we: were ew'deaee higher: him a: a: {be a?rezzm'raneei 2'22 there reports are tempted, a: andoubted?/ we; the care here, the reef! ertablz'ebed pimp/e: qf O'Kee?e a. Are Bord Pieaa?la ?twee dear that bit decimal: ii not to be inlertmd we? 48. In summary, the Commissioner contends the High Court did not apply the correct standard of review, and his own taking command of the factual assessment does not comport with the consistently-applied standard. Zadgment?i faz'z'are to 522212 the 536(7 299] test 49. The Judgment?s focus on ?self?evidently commercially sensitive? does not properly re?ect the text of either. 50. While the Judgment holds that information such as {be the non- zzi?z't'zlm?z'ea fee; emd the rate of z'eterert are .f?f??zfic?fE?d commercial/?! Jemz'tz've? that is not the statutory test. 51. Rather, the exemption is two-fold. First, the records must actually ?containmg information of a particular character and second, disclosure of that information must then be capable of giving rise to one of the two types of effects referenced in the ?rst or second ?limbs? of i.e. reasonable expectation of material 1055/ gain, or that it could prejudice competitive position in one?s business occupation. '3 Despite the ?contain? requirement, UCC directed the Commissioner to no aspect other than Art. 1] of the Finance Agreement. 14 52. 53. 54. 55. The second part, i.e the ?harm? or ?effects? element, is something which could never properly be ?self-evident? to a court on the mere reading of a record. Rather, it is something which a public body must of necessity (and quite apart from which further supports the position) - explain. The key issue therefore becomes to what extent, if at all, UCC actually explained during the Commissioner?s decision?making process - being the only relevant period - how the elements of would be engaged by the release of the records. A reading of submissions to the Commissioner reveals that it did so in a half?hearted, unclear way, if at all. In the High Court, UCC relied chie?y on what its submissions had stated regarding its costs of capital (considered below). One pauses to note that the issue is indeed commercial sensitivity to UCC, because:- 0 submission to the Commissioner made clear that its redactions were proposed in light of its Transparency Policy, to protect the interests of ?i?ndiaz'a?aafi? and the commercial interests of ?a natured or [egalperrotz?. The latter term does not extend to EIB itself, which is referred to throughout the Transparency Policy as ?tbe Battle?. 0 May 2018 letter, which UCC exhibited in the High COurt, asserts absolutely no commercial sensitivity interest of Indeed, the conditional terms in which that correspondence is cast, suggest that UCC itself had not yet demonstrated any commercial sensitivity interest, even to EIB. 0 The judgment appears to have found no error regarding the Decision?s treatment of effects on EIB. 15 submissions focused upon effects upon the E113. This, understandably, led large parts of the Decision to refer to BIB, and it is submitted that the judgment erred (at ?69 and ?76j in criticising the Decision in that regard. 56. The Commissioner?s High Court written submissions argued @127): ?Tndeed, as a matter of sense, 2] UC doe; not bother to z'dent?l ween promotion: try" toe Finance Agreement are comenerczatjy Jenntz'oe, t/Je practicat onettz'on ante: of infant exactty the ornenz'moner 2'5 rappored to do to? UC to toe public body ztie??wnz?cn wit! best know what z'tyfn?enanon, when dz'ictorea?, an?! aged it in what may, tax/nob it toe only logical starting poz'ntfor any commercial Jeniztioz'gz arterineent. 57. McDonagh, ey?lnfonnatzon Lane (3?6 ed., 2015) a text whose persuasive authority was relied on by UCC - describes and as .. two anew?bated promeonf? It follows that a public body must point to possible harm prejudice. 58. In Wesnvoad Information [2015] 1 IR 489 Cross]. stated G67): I do hold that the explanation as finally given on 27th February, 2013, by the notice party does little more than repeat the requirements of [now and refers to the nature of the documents held. It does not in any sense engage with the proper question of the investigator on behalf of the respondent as to may these particular documents, if disdosed, could prejudice the financial position of the notice party.? (italics per Cross}, underlining added) 59. In Sneealy, Kearns I. stated ?Toe onn; to produce eoz'o?ence on toe ?rst notice party and to toe anience of iaene toe reipondent near entz'tted, nnder $.34 (yr the Act of 7 997, to bold against toe/Em notice part}. A neeze attention of an expectation of non~co-operatzon from teacbing My? con/d conetz'tnte inf/Eden! ewalence in this regard, .. . 16 60. 61. That applies afar-tiara to Cogent explanations are required not least because it refers to various types of information including an open-textured category of ?b!ber?information. In any event, the Commissioner?s office made clear that speci?c information and explanations were required, and UCC raised no objection to that standard. Cameras: an?n?g out at the regaired by #33 62. 63. 64. 65. While the Commissioner took full account of all submissions made, the judgment appears to envisage an obligation to engage in a novel form of statutory adjudication. In particular, what appears to underlie the judgment, including the last two sentences of ?77, is that the Commissioner is obliged to engage in some sort of jigsaw exercise, taking the redactions identi?ed by EIB, and joining those up with submissions to the Commissioner - or, more particularly, those limited aspects of submission which pertained to alleged impacts on UCC. What was never put before the Commissioner despite it not being a particularly complex exercise if the information was indeed commercially sensitive to UCC - was any ?joining up? of the redactions, e.g. as identi?ed by BIB, with what actually requires, namely identi?cation or explanation of prejudice effects. This was expressly noted in the Decision. For exampie, it found that the submission of EIB, enclosing the redacted Finance Agreement: did not Hate My 2353156935! . .. the information redacted to be commercially sensitive, and that: ?TlVTez'f/Jer bar indicated whether was in mm or UCC it interest; which it expected to he beamed J's/ear: or Iii/Mt it managed. "9 :9 p4, penultimate paragraph- 17 66. The Judgment appears to hold that the Commissioner should have somehow the gap?. 67. Effectively, it holds that the Commissioner was obliged to decide in favour of UCC on the basis of a case which UCC did not make. 68. This is very problematic. Quite apart from offending against ?rst principles and the philosophy underpinning the case law foreclosing new arguments, such a putative adjudicative process entails a very significant risk of unfair procedure to requesters (here RTE). 69. Even if a statutory adjudicator were obliged to engage in a jigsaw exercise (in the teeth of a public body?s ?0am to pradme eat/Meme qf pryadz'ce as per Sheen} above), it would not avail UCC here, not only because all submissions were taken into account, but also because of own submission regarding the drawdown of funds. This was expressly quoted in the Decision and is dealt with under the cost of capital heading below. 70. Parenthetically, it may be observed that the manifestly unsatisfactory state of the submissions made to the Commissioner here underscores why the presumption is important if public authorities? reliance upon an exemption is presumed not to be justi?ed, it encourages proper submissions on their part. Moreover, parties clearly can be - indeed must be judged by the submissions/ points which they actually make to a statutory adjudicator. Thus, in Ryan ?nancial Services Ombudsman (unreported, HC 23 Sept 2011) MacMenamin j. stated ?lis?do not z?bz'm? [the Ombudsman] 2'5 my way to be m?z?z'ciredfbr :10! ordering fem/yer dzm'ormr; ease-garage; to a bead/2g?? are not 25mm Jtaridm. The F50 has a marinade! cam/cad 1? The reference to a ?hearing? here was to the paper-based adjudication as there was no oral hearing. MacMenamin 1 also referred to the parties there being legally advised. Here, although it is not apparent whether legal assistance was at play, UCC certainly had signi?cant assistance from its own committees and personnel. 18 ALLEGED ERRORS OF INTERPRETATION AND OF DISREGARD OF MATERIAL Aii?eged error of .rtoi?mogy z'm?eg?- Motion 71. 72. 73. 74. The judgment held that two [?22265 qu-oomo) ore (which is not disputed) and asserted ?itbe opprooeo Joker: if): the Injomme?z'on Commimooer join to reeogoioe ibis? seemingly because it yam-e: o/mon' exe/zeoz'oe? on toe/2m one? (both of which latter statements are incorrect, and indeed inconsistent with the text of the Decision). Although ?70 deemed this ?on error groomer); interpretation? it is not at all. The Decision advances no interpretation of which is anything other than disjunctive. This is apparent, for example, from the ?rst full paragraph on p.3 of the Decision which refers to the ?it-report? and the ?Ieoorzd?on?? of and states expressly that: ?The rrondord of Word teeming z?o meet {bit test eomz?derobfy fower too): toe standard to wee! {be mi of ironid oe expeeted to? in tbe ?rst pan? of Home). Where there is no statutory interpretation error, not failure to regard both limbs of as being at play, what the Judgment is actually criticising is a perceived de?ciency in the regions given in the Decision. That worming, rather than statutory interpretation, is the real objection manifested in ?68 of the Judgment: ?Nolzzo'tbrtozzdz'erg doe for! that we dece'rz'on under appeal comedy z'dezie?yiei at the outset 21ml {be standard ry?peoof to meet the second limo under 1.3mm) eomz'derob?v Korea? the In?rmote'orz omm'm'orzer (ode to to ibis dz'rtz'rzefz'oo in {be ermn?oe gm?! ofeoe dedtr'oir. 2' i.e. Lower than that under the ?rst limb. Therefore, this comment is a tacit recognition by the Judgment that the Commissioner in fact did not make any error of interpretation. 19 75. 76. 77. 78. An obligation upon adjudicators to repeat, in the (unde?ned) ?operative part? of a decision, matters referenced earlier is apt to lead to lack of concision, undue caution and possibly chilling effects. It is important that the perceived error (and, to be clear, no actual error is accepted to arise) is correctly identi?ed i.e. as one of reaiemiig for two reasons. First, breach of the duty to give reasons was one of the (comparatively few) grounds which were n_ot put in isSue in Originating Notice of Motion. The Decision cannot therefore be attacked at a later stage (much less in the judgment) on this ground. Second, the case law is deferential to statutory decision~makers regarding the reasons in their decisions. This is so for good reason. Indeed, at the oral hearing counsel for UCC accepted that the decision should not be ?parsed?. For example:- In 1.}me Frhancia/ Services Ombudsman [2015] IEHC 298, Baker stated I note the dim: ef in Carr 9 Fz'zemza'a! 3mm Ombadrmme [2013] I EH 78222 where Jbe stated {be?fiewz'egu consider Ma! {be obligation of ?ee to give the ?headgear? elf/Jr's reason: ?22 a wrz'e?teez?ndiezg wearer Ilia! are: obiz'ged to deer! are a pointer-poem basis wit/J every argument made if}! a reign/armor. This we: a ease MM extensive 222nm): The mpwdem? 2'5, bi: direree?z'an med regiegg er: Iii: aim eagben?z're in Me area, errlz'tr?ed to select and determine abate three that appear to em to be refeea?t. 22 Carr is currently under appeal to the Court of Appeal; however, endorsement thereof is a ?nal judgment. 20 That, in turn has resonances with O?Flahertyj in Faulkner Ili?hrkrer for Industg/ and Commerce [1997] ELR 107 who stated (p11 1): ?Yle/Jm ransom are mqaimd?om memoir logy rook/d be regarded to give 022$! :66 brood gz'n? of the odd; oftbez'r decision do to renew to tba?babfz'o in generot?. or to portz'oaior iadz'oz'dmlr. {f we mac: we?; doalrz'oiz (1(6er administrative rebuild! to Miami: analyze The same position applies to FOI decisions. Cross]. stated in Wernvood ?Too low odor/5 a wide margin of dzlrorerz'oiz to dea'rion ?new. if no! ?r r/Je calm to z'zngorr standardr of oxoeffemo or memo upon woo! dea?rzon maker: rigor/d decide or my (orgy Ibozdd decade it.? Damion adeged [adore to bow regard to bot/J mo; of x.56( mag 79. The Judgment held the Decision . . ?rmer Mozart ext/arrow or: we 2231925? of While this is incorrectly characterised as a statutory interpretation error, the underlying criticism is also factually incorrect. 80. ?3.14 it would be surprising if the Decision, despite noting that the threshold for one limb of was lower than for the other, then somehow later ?forgot? when it came to the ?operative part? that there were two limbs with different standards, or decided to ignore one of them. A reading of the Decision simply does not bear this out. To the contrary, both limbs are repeatedly referenced. 81. Seggnd, the above case law on reasoning is again relevant. The Decision is not obliged to engage in a ?point by point? approach. 82. Third, the judgrnent?s following of Erie! on the presumption issue, as well as being an error in 56, led the Judgment into further error regarding its characterisation of what the Decision had actually decided. 21 83. 84. 85. 86. 87. This was because a fair reading of the Decision is that it gives detailed consideration to whether UCC had actually its refusal under Thus, even on the cover page of the Decision, the ?lssue? arising is described as Whether alarm to raj/wing to reteote record; to the opptt'coot referring to a foot: to from the [El on the bait: that they remained tentative z'rt?matzoo?. Fourth the the Commissioner expressly considered whether was engaged in respect of either UCC o_r BIB and found that it was not. Regarding BIB, the Decision noted that although EIB had been given the opportunity of .. the home which mold? he occasioned opt [I?Iy?omotz'oo] re/eote, it hot not done Accordingly, the Commissioner correctly held that, there was ?nothing light}? me? that could engage or _e_ith__er limb thereof, regarding the E113. In any event, although clear focus before the Commissioner on the E113, rather than itself, is relevant, the effects or lack thereof on EIB are irrelevant to this appeal. This is because the Judgment does not actually hold the Decision to have erred regarding its findings on EIB, and Respondent?s Notice does not put this in issue. Rather, although the judgment notes in passing submission to the Commissioner regarding EIB 673), it holds that the ?fundamentot error? was that it allegedly . . ?uted to hove mgord to the doped or adverse e??et? or: UCC, or oggoted to El Turning then to impacts on UCC, after summarising submission regarding drawdowns, the final paragraph of 13.524 stated (second sentence): ?T/Jerefore, I am not satisfied that retetm Qf the {mm oft/1e contract wotdd revert! the Jpeoyie tram; oppded to eat!) tram/9e drown dorm ?32 UC C. The following points arise from that ?nding: 23 The reference to the lower threshold of ?could' further undermines any argument that the Decision somehow misunderstood or misappiied the relevant test. In passing, it may be noted that the sentence which follows uses the word ?would". However, This applies to ?13, but EIB never asserted any prejudice to it, (ii) The Judgment found no error regarding BIB, and Respondent?s Notice confines itself to the points in the Judgment The case law on reasoning is again relevant, particularly given the use of the word ?could? in the sentence immediately beforehand. 2" Including the cover page of the decision. 22 It clearly forecloses application of limb of regarding any effects on UCC itself. This is because the threshold in order for either limb to apply is that .. 3/76 record comemed 0011(3th - ?nam'af, mmwerria? Mariya? or fer/mica! or otbar {a??mkozz The effect of this part of the Decision was to ?nd that that threshold was not passed. It is clearly judgment and exercise of discretion (as manifested by the word ?rati?ed? to which the deferential test in PP attaches. Applying Shred}! 679) there was certainly ?some m'deme? supporting the Commissioner?s determination. Alleged $227517? I0 dam: regard to relevant? roaiidemz?z'om? lbe?nw sf the redacted Finance ligament 88. 89. 90. ?71 of the Judgment alleges a failure to have regard to relevant considerations, seemingly the redacted ?i/em'on (y?tbe?mm?e contrast? furnished by EIB. ?7i states that by a comparison of the redacted and unredacted versions it would have pam'bfe?r the Irg?ormaiz'oa ommz'mhrzer to z'dmz?g? ?re?ife?l #13 it?matz'on 2'22 78.9966?? qf which disdain? was ?ring malted.? Two observations arise. First; disclosure ?was being misled? by UCC of everything, seeking to have all elements of all records withheld, only altering position at the litigation stage. Second, the conditional~tense statement ?wazdd have implies that the Commissioner did not actually properly review the redacted and unredacted versions. There is no basis for this. The Decision repeatedly describes various of redactions. For example: ?W/Ji/e the in?rmatz'on withheld from the cop} qf we record presided the EB indicated which it wandered to be commem?at??i Jemima 09.5, penufi?zazm?e paragraph) 23 91. 92. 93. 94. .. toe BIB provided a copy of we record wit/9 various reference: to wow rate: and (em: and and said it bad no oageez?e?oa to it: Meme. In an regard, i! re?ned to A?ier?e 5.5.25 ofz'e?r 02w: Traan?areogz Polity . .. 09.5, ?Reeord '1 alto deeazlr wearing to properly may see oza? detazZr of properties used for student accommodation pmporer. Tbe barrage aft/5e ownerrozp yeaebpmpergy z'rgz'oea reader the beading ?Dereezple'oai 7 ?7 baoe alto bad regard to eon'eipoadeaee beaveea tea O?iee and EI 612); The alleged failure to have regard to relevant considerations, is, in reality, a disagreement with the substance of the Commissioner?s Decision, without applying the appropriate standard of review. INTEREST RATE ISSUE In the High Court, UCC contended that the interest rate would be disclosed if UCC chose .. drawdowa of leg! the food: or: a ?oatiog/oariao/e em 26 The judgment appears to support this position.? However, UCC did assert that ?aft? the funds had been drawn down on a floating/ variable basis. Seemingly to the contrary, it submitted that ?Toe Um'oerrz'gy [having] draw-a down ?757a of [be toeai ?100?: 2?22 Nooemoer 20 '16. The judgment continued that .. 2f UCC did not opejor {be readable rate, toe?! the eatereri? rate would become known a! Mo dare cf drawdome. There was no evidence that UCC had so ?opted? and UCC did not make this argument before the Commissioner. 25 It is ironic that while UCC seeks to withhold release of the information in the domestic F01 process, the E13 Transparency Policy, and corre5pondence of May 2018, raises the prospect that the information could be publicly released by the EIB itself or on foot of a request to it. 26 ?144, grounding af?davit. 27 {375, second sentence. 23 UCC Sept 2017 submission. 24 95. Signi?cantly, 2017 submission to the Commissioner tended in the direct opposite direction to its High Court case. The first bullet of that submission stated: .. the kg! ?nanced! tenm?ir earth dean/dawn request e. interest rate ?oating or faxed are only; determined at the drawdewa date and then are based on premz'tz'ng market rate; RI OR etc at the time 96. As already noted at ??86?87 above, the Decision (p5, last paragraph) had regard to submission and came to a judgment upon it not mtz'g?z?ed That judgment, which is entitled to deference, foreclosed application of either limb of 97. UCC made the submission referenced above seeking to ?re?t on oft/2e FOI Act? (namely non-existence of records). It expressly contended in its 2017 submission to the Commissioner: web, the genres tear: term? a: :eqaetted ?gy Mr. Ryem?r the agreement do not exist today and 2,9271% be determined ever the next 5y?: a: we draw dome edtb teat: trunebe?. The Decision took submissions at face value and ruled accordingly. However, in a troubling vettefate, UCC appears to have changed its position in the High Court here, without proper explanation. 98. Because of the Decision?s finding that the gbetr?c terms applied to eaeb tram/ice ef fared; drawn dawn would not be revealed, submission (quoted at judgment, ?72) that ?Ditetetme of test of capital? would compromise it in various negotiations had not been made out. In any event, negotiations are protected by a separate provision not invoked by UCC namely 99. While the judgment held that the Decision?s approach to the interest rate issue was ?0mg tee/mime? @374) that somewhat vague standard of review is not the standard on a 3.24 appeal. 29? That UCC needs to rely on is apparent from ?29(3) of its High Court Submissions, submitting that would ?appear to be relevant?. However, it is not entitled to so rely. 25 100. 101. 102. 103. 1 04. 105. 106. Far from being ?overly technical? the approach taken is doubtless correct, because UCC cannot have it both ways. It cannot submit as it did to the Commissioner that {be meo?c Joan term: do :20! exit; today?, and then in the High Court attack the Decision on a totally different basis. While UCC made arguments in the High Court based on the ?margin?, and ?75 of the judgment also references the margin what 2017 submission to the Commissioner amid/5'1? asserted in that regard was that: ?Dz'irfomre of 722mg?? appa?z'e'd to #96 UCCfmi/z?i? maid comgrowire mmgetz?i?z'w attrition The effects of margin disclosure on or it: Itztdem?f? were therefore only indirect stemming from future investment by EIB supposedly being compromised by EIB feeling its competitive position would be undermined. However, EIB stated no concern for its own position to the Commissioner. Therefore, the Decision is vitiated by no error or omission regarding cost of capital and, furthermore, UCC ought not to have prevailed on this point given the paucity of detail it provided, despite the Commissioner?s request for speci?c submissions. RECORDS 2-4 The Judgement erred in focusing excessively on Record 1, while overturning the Decision?s conclusions on Records 24 without considering the merits of the Decision regarding them at all. Importantly, ElB?s redactions only applied to Record 1. No speci?c parts of Records 2-4 were ever identi?ed by UCC to the Commissioner. Despite this, UCC put before the High Court redacted versions of Records 2-4, and the judgment allowed its appeal regarding those records. Regarding Records 2?4, the Decision expressly found that: 26 .. wbz't?e I accept {bat UCC liar out?tted apateatz'at bum? a?rieg?om the rafters genetul?t :y?tecordr aft/39 type at that beta, it but not ago/az'aed bout rut/J twig/2t mite baw'ztg regard to the contents of the Jpet?z?c records at time. AI tut/9, it to me that UCC but not 5:50am that twp/tar ta Records" 2-4 107. "Without prejudice to the Judgments lack of consideration of Records 2?4, it is clear that this was a ?nding within the Commissioner?s jurisdiction and not vitiated by any error of law. Incidentally, it is also clear that it extends to both limbs of because:- 0 First, ?born? here is not a word that appears in the statute, and clearly encompasses both the ?loss? element in ?rst limb, and the ?prejudice? element in its second limb. 0 Second, the reasons which the Decision gives clearly apply to both limbs. The two reasons: UCC had ?not captained bow rm!) might mate? and (ii) it had not done so ?having regard to the confetti? oftbe Jpet?g?c tet'ordi?. 0 Third, and most basically, the passage expressly references 336(1) is the provision in its entirety. FRANCIS KIERAN BL NUALA BUTLER SC [7,913 words] 3" UCC argued that the reference here to potential harm meant that it satis?ed the ?could prejudice? limb of However, the point the Decision is making here is that submissions (ie. what UCC had ?outlined?) didn?t actually refer to the records, much less to anything in them. Rather UCC made a ?general assertion", as the Decision expressly described it, about an abstract state of affairs. 27 Appendix Chronology 1. IO. 11. 12. On 6 January 2017, RTE made a Freedom of Information (FOI) request to University College Cork (UCC). On 13 January 2017, RTE wrote to UCC noting it had not received con?rmation of receipt of the request. On 17 January 2017, UCC reSponded to RTE con?rming a decision was to be made by 03 February 2017 On 01 February 2017, UCC wrote to RTE extending the deadline for response to the request until 02 March 2017 citing Section 14 of the FOI Act 2017. On 10 April 2017, UCC issued its decision on the F01 request to RTE. There followed an exchange between RTE and UCC regarding internal reviews and on 18 April 2017, RTE requested an internal review of the Decision, noting that the initial Decision was returned outside the statutory time limits and RTE considered it a deemed refusal. On 24 April 2017, the request for an internal review was considered by the F01 Internal Review Board of UCC, in which the Board made a recommendation to uphold the Original decision. On 27 April 2017, UCC wrote to the President enclosing the recommendation of the Board dated 25 April 2017, recommending that the records in question were commercially sensitive and that Section 36(1)(b) of the FOI Act had been applied correctly. On 02 May 2017, UCC wrote to RTE enclosing a letter setting out the internal review decision which had been taken by the President, noting that the President had decided to accept the recommendation of the Internal Board and upholding the Initial Decision. On 05 June 2017, RTE submitted an Appeal of the Initial Decision to the Information Commissioner. On 06 June 2017, the Commissioner wrote to UCC by email with noti?cation of application for a review of UCC FOI Decision and requesting documents In relation to the Decision. On 09 June 2017, UCC wrote to the Commissioner enclosing the documents sought by the Commissioner. 28 13. On 05 July 2017, the Commissioner wrote to UCC con?rming that they had accepted Application to review its Decision and requested submission by UCC of cepies of the main records which were subject of the request. 14. On 14 July 2017, UCC wrote to the Commissioner enclosing the schedule of 15. 16. 17. 18. 19. 20. records, as well as copies of the records requested. On 15 August 2017, the Commissioner wrote to UCC noting the investigator to whom the case had been assigned and invited UCC to make submissions under the FOI Act by 29 August 2017. On 17 August 2017, the deadline for submissions was extended until 08 September 2017 following a chain of emails between UCC and the Commissioner. On 07 September 2017, UCC wrote to the Commissioner by way of letter, enclosing its submissions. On 06 November 2017, the Commissioner wrote separately to the EIB seeking their views. On 27 November 2017, the EIB wrote to the Commissioner enclosing a copy of the EIB Group Transparency Policy and a redacted version of the Finance Agreement. On 13 December 2017, the Commissioner issued its Decision wherein it directed the release of Record 1 subject to certain redactions, Records 2-4 in their entirety and concluded that Record 5 did not fall within the scope of the request. 29