1 g; THE SUPREME COURT 1' I E. 2015 No. 394 MCA IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 2014 THE MINISTER FOR COMMUNICATIONS, ENERGY AND NATURAL RESOURCES APPELLANT RESPONDENT AND THE INFORIVIATION COMMISSIONER APPELLAN RESPONDENT AND GAVIN SHERIDAN AND EIREANN TEORANTA (TRADING AS ?enet?) NOTICE PARTIES SUBMISSIONS OF THE APPELLANT Introduction and Scope 1. This is the Commissioner?s Appeal against the Court of Appeal judgment of 6 March 2019 ([2019] IECA 68). Leave has been granted on all grounds and for the Respondent?s cross? appeal in respect of the Court of Appeal?s conclusions on 3.35 of the Freedom of Information Act, 2014 The Commissioner has not seen any submissions on the Respondent?s appeal to which he can reply and consequently reserves the right to reply to submissions on the cross-appeal. Further, the Commissioner is cognisant of the request that submissions in this and the associated case of Uziz'yem'gy College Cane Izg??m?on Comm'm'mr do not engage in unnecessary overlap. To this end, were submissions cover the application of the presumption and the law regarding new arguments sought to be relied on in Court, but not made to the Commissioner, and will be adopted in UCC, ultimately shortening those submissions. Issues for the Court 2. The issues for the Court can be Summarised as follows:? a. The Commissioner submits that there is a legal presumption under s.22(12) of the FOIA that any refusal of a request under the FOIA is presumed to be unjusti?ed until proven justi?ed. The counter-proposition is that as certain records can be classed as ?exempt records? under the FOIA, then it cannot really be presumed that a refusal to grant access to same is unjusti?ed. The ?justification? for their non-disclosure comes from the FOIA. This, in essence, is what the Court of Appeal held. The Commissioner?s response to this is that for a record to attract ?exempt? status there still must be a decision?making process leading to this conclusion. So, although records may be ?exempt? such that a head ?shall? refuse to grant access to same, the head must make a series of decisions, judgments and evaluations to get to that conclusion. Indeed, it is often those particular decisions, judgments and evaluations whether something is con?dential or commercially sensitive) that are the substance of the F01 dispute. The Commissioner says that the presumption applies to the end product i.e. the decision to refuse and presumes that the aggregate of decisions, judgment and evaluations that lead to that point are unjusti?ed until shown to be justi?ed. This is clear when 522(12) is read as a whole including both and Further, it is far more consistent with the purpose and philosophy of the FOIA than the counter?proposition. The counter?proposition would allow a body to determine (itself) that a record is, for example, commercially sensitive on the basis of information known to it (and limited third parties) and not have to explain itself in any way to the Commissioner when a requester exercises a right of review. Rather, the requester (who will not have access to the records) would have to contest the commercial sensitivity relied on in an entirely blind way. The counter?proposition is therefore highly likely to undermine the ef?cacy of the FOIA given the vast bulk of exemptions claimed arise under 5.35 and 5.36 of the FOIA and rely, largely, on arguments and assertions usually solely within the knowledge of those asserting the exemption. It should be noted that the Commissioner has no vested interest in the status of any particular record but apprehends that the manner in which the Court of Appeal applied the presumption is highly likely (to the point of certainty) to wholly undermine the ef?cacy of the FOIA in a manner inconsistent with the FOIA itself, its judicially recognised policy and purpose. The Commissioner submits that the Court of Appeal wrongly criticised the High Court Judge for applying ?judicial review principles? notwithstanding that, at the same time it acknowledged that there was no actual evidence of such application in the judgment. Nonetheless, some doubt now exists over applicable standard of review. The issue may be somewhat net for this Court as the Commissioner agrees entirely that Deeigy and 515864} are authoritative statements, in turn adopted and enforced in many cases including by the Court of Appeal in PP. However, the uncertainty that has been created by the Court of Appeal criticising the High Court for the citation of what the Commissioner says are correct principles which are, in practice, virtually indistinguishable from those applicable on judicial review gives rise to dif?culty. It is recognised that the Court?s conclusions had no bearing on the outcome, but there is now considerable uncertainty for the High Court in how it should approach cases of this nature. The Commissioner submits that the Court of Appeal wrongly interpreted and applied the principle that arguments relied on in Court must have been put before the Commissioner during the decision?making process. In this case, the Respondent was speci?cally told in correspondence that the Commissioner would apply the presumption in in the manner the Commissioner believed appropriate. Thus, at the outset, this was speci?cally put ?on the agenda?. The Respondent did not in any way dispute this and, instead, sought to justify its refusal. The ?rst time the Respondent disputed the Conunissioner?s approach?that the refusal was presumed unjusti?ed until justi?ed was in its Court pleadings. The 3 Commissioner?s position is that the established law is clearly that the Respondent should not have been permitted to raise that argument for the ?rst time in the High Court. (1. The Commissioner says that no legal error was committed in how the public interest balancing test under 536(3) was carried out and takes issue with the Court of Appeal?s ?nding that the Commissioner applied a wrong legal standard in the application of this test. e. Finally, for completeness, the Commissioner submits the Court of Appeal was correct in the interpretation of 5.335(2) but as the Commissioner is responding to the Respondent?s cross-appeal here, it must reserve its position until the Respondent?s submissions are seen. The Presumption at Section 22(12) 3. Section 22 deals with the review by the Commissioner of Decisions in respect of FOI requests. Section 22(1) sets out the scope of application of the provision and the Commissioner?s jurisdiction is set out in 522(2). Thus, on application to him, the Commissioner may review a decision to which 5.22 applies and following that review may, inter alia, af?rm, vary or annul the decision. Section 22(12) provides as follows:- In a review under this section- a decision to grant a request to which section 38 applies shall be presumed to have been justi?ed unless the person concerned to whom subsection (2) of that section applies shows to the satisfaction of the Commissioner that the decision was not justi?ed, and a decision to refuse to grant an FOI request shall be presumed not to have been justi?ed unless the head concerned shows to the satisfaction of the Commissioner that the decision was justi?ed. 4. The ?decline? 2?0 re?ne to granf? is not a complex term. It may, in any given case, involve a single issue is a document actually held by a public body?) or it may involve more than 4 one issue. In the context of 3.36, for example, it would involve decisions reached by a head on 536(1) and The decision to refuse, in such a case, is an aggregate of determinations reached under both those provisions including whether the various ?harm? tests are met. Those determinations, if justi?ed, justify the refusal. 5. The Commissioner contends that applies to that decision (and by extension to the aggregate of determinations encompassed within the decision) and thus the OIA says, in pursuit of its clear policy aims, that this is presumed not to be justi?ed. 1n substantive terms this means that those who maintain that a request should be refused have to explain why to the Commissioner. Note that this argument is dealing only with the burden of justi?cation and not the standard of proof. The legislation is clear; the burden of showing that decision to refuse to grant a request is justi?ed falls on the person who made that decision. 6. In Iafonaatz'oa Comminioner [2005] 2 IR 272 at 275 (Show) Fennelly although dissenting as to the result, cited the long title to the 1997 Act and stated:? The pameg of the Freedom of Iry?itmah'oa Act 1997 eomz?z?tm?ea? a fegz'rhzz?z'oe a?eoefopheent cg? mayhr importance. it, the Oz'reaehtai tech wandered and deh'herae?e Heb which dramatz'eai?z after: the adm'ezz'?ratioe aimrigoz?zhm and ea?are cy'eeaemz'ee. It repiaeer [hep mambtz?oa icy-renew m'i'h one efopeemeir. dei?gaed 2?0 openY up the working; ofgooemmea! and admiazlre?raz'z'ea to watery. It no! (feigned staph; lo roam! the appez?ite ofthe mecha?ir stories. It zlr?Jr the heme/3r of dream. I he; fight 2'72 to the of?cer aad?h'hg eahiaet: of our mien. The pn'haple {if free acme to pahh'q?y held haematioa elf pan? ayra world?Made head. The genera! anamph'oa that originate: he the hammer. The Treag; ofAean?erdam adopted a 255 {Jf the Treagy providing that eoegt citizen of the European more rhea/d haze acme re the document: (y?the Eampeaa Parh'ameat, Comm! and Communion. 7. On many occasions the approach of the Courts to the Commissioner?s decisions is based on this clear philosophy. In Deejy The Ia?matioa Comminz'eaer [2001] 3 IR 439, at 442 McKechniej held of the predecessor legislation that it or: orgy met?, a offegiefatioh independent in exerteme, ?n?efaf in it: aha arid h?hera! he oah?ooh 8. In Minister/hr Agn'eattme Ia?lmzattoa [2000] 1 IR 309 at 319 O?Donovanj held:? We the tg'ght ey? its pteaehh/e, it seems to #26 that there can he he deaht hat that it was the z'ateattha ef the teg?hztme, where enacting the re visions of the qfleyhmatz?ea Act, 1997, that it was ta exceptioaat eases that weathers off the pahtie at huge shoata? he debated ef access to z'zyhmatiaa he the possession ey?pahh'e hedz'es aad thz's zhteatz'ea 2's exemph?ed hy the pmeiszea cf s. 34(12)(h) of the Act which pmyides that a deds?z'oa to refuse to grant access to ta?maattea sought shaft he hot to have hem jasth?ied anti! the taatragt is shown. Aetordz?hghr, it seems to the that the eatfee Act must he eeastmed he that tight 9. In .Mz'az'sterjbr Edaeatz'oa Ity?bmatz'oa Camazz'ssz'eaer [2009] 1 IR 589 at 594 McGovern] held that:- [Whe Aetpmee'a?es that it was the eatehtz'aa of the Oe'reaehtas that it is cab: he cases that weathers cf the pahh'e sheatd he deprived to hyhmatz?ea he the possession quahh'e hadz'es. I is etear that the tegz'stattea operates on the hasts that a deteseea t0 refase to grant a reqaest is to he presumed hy the ememlrse'oaer hot to have heehjlastwed. 10. Similarly in FF :2 Ia?matian Caazhez'ssther [2009] IEHC 574 Clarke] (as he then was) had regard to the dicta of McGovern and above and held:- Ia the t?ght cy?these dealrtoas it is dear that the intention if the Otteaehtas was that the exemptions attezeed Part interpreted restnetz?ve?l and appt?z'ed sparing. If the exemptions are a?hrded tea :w'de aa interpretation, the refuse! tyraecess toata? heeome the mic :hstead g? the exception and this weer/d eharty?wstrate the pa'aeagy charities cf the Act qf 997. 11. In addition, the new 311(3) (introduced in the FOIA 2014) provides that an FOI body in performing any function under this Act, shall have regard to: the need to achieve greater openness in the activities of bodies and to promote adherence by them to the principle of transparency in government and public affairs the need to strengthen the accountability and improve the quality of decision making of FOI bodies, and the need to inform scrutiny, discussion, comment and review by the public of the activities of 01 bodies and facilitate more effective participation by the public in consultations relating to the role, responsibilities and performance of FOI bodies. 12. The language in is very clear. It is also entirely consistent with the repeatedly re-stated rationale and purpose behind the FOIA, enforced by the enactment of 3.1 1 (3). 13. Given the speci?c arguments in this case, it might assist to develop the Commissioner?s submissions speci?cally against the backdrop of 5.36. This provides as follows:? Subject to rubreclz'oa (2), a head shall refuse to grant an FOI request if the record concerned contains?? trade secrets of a person other than the requester concerned, ?nancial, commercial, scienti?c or technical or other information whose disclosure could reasonably be expected to result in a material ?nancial loss or. gain to the person to whom the information relates, or could a, or could prejudice the competitive position of that person in the conduct of his or her profession or business or otherwise in his or her occupation, or information whose disclosure could prejudice the conduct or outcome of contractual or other negotiations of the person to whom the information relates. 14. This is subject to 5.316(3) which provides that 5.316(1) . . .does not apply in relation to case in which, in the opinion of the head concerned, the public interest would, on balance, be better served by granting than by refusing to grant the F01 request. 15. The Court of Appeal was influenced by the obiter dicta of Macken] in the Governor; of the Hoipz'tat the Reh'ef of Poor Lying in Womea Irg?omatz?oa Comtm?irz'oaer [2013] 1 IR 1 In Ramada, Macken] said as regards the then applicable test of the presumption (Le. under the 1997 Act):- Thir a very dear which, on ttr?ee, appear: to appty to at! I have he dzl'?icut'ty in it: apph'tatt'oa to ah? tiremmtaatet covered hy the )1!ng of attest to I have a t?gah?ieaat its? apptitatzeo to request: made in respect of dz'tetorare Part I I I of the Act, which he statute mandates a reforat, and to which no right of attest exists. It dg?iezr/t to see howI it worth! appy to the propitious of ti. 1 9 to 32, other that: the head in quertz'oa the team cf the oan'om Jette'om. Even then it to are how a headgoet ahoat a?eaer'oh it: the ease ey?; which ditetotare, tater aha, a record which has heea or it proposed to he tuhhtt'tted to the Gooemmeat ?r z'tr eomideratioa, which I take at the ?rst exampte of the type of record covered Ezther 34 (12) does not app?t to teeth exempt reeoralr, or it it tt?deatty eatztfied hy proof that the record he z't, z'hfaet, one to or 55 proposed to he to the Government. Seth proof atom/d h'he?t ta?ee gfz't it made at: appropriate person, and not he rejected hy the reipoaa?eat, taoe ta the meet exeabttoaat a'reatmtahtet, ofwhz'eh I can heagz'ae aoae.? 16. The Court of Appeal held, in essence, that this approach was correct i.e. that where a record is otherwise exempt it cannot be the case that a refusal to disclose same is presumed to be unjusti?ed. In addition, the Court of Appeal held that the Commissioner erred in that he ?@proaehed the care at: the had: that record: exempt h} statute are premeaed to require dim?otme. This particular holding is incorrect. The Commissioner did not approach the review by presuming that exempt records were required to be disclosed, but rather that the refusal to disclose was unjusti?ed unless shown to be justified. This may require the head to establish the applicability of the exemption and/ or the non?applicability of any public interest over-ride. 1[2013] 1R1, at 78. 17. 18. 19. 20. The Commissioner submits that Mackcn j?s approach should not be followed for the following reasons. First, it is obiter. Macken] herself did not consider her comments binding. The comments are housed in a section entitled ?The 5226(3) z?mee?. She stated @250): ?My comment; on bowl woo/d have appmaebed {be exem're bad it been meeting) to do 50, are Mere?ire Ire/Jody obiler, nod my be oomz'dered?ooz more peripeez?z?oe. ?Thus Birmingham P. was incorrect in holding in East the comment; ofMoe?m 2'72 Mir regard were agri?ieom?, eomz'demte, and de/z'oemte. Tim was a quarto}: of em over-brood oxide to be deionised or mere orbiter. How ?considerate?, or even ?signi?cant? judicial comments are deemed to be is not determinative of whether they bind. As this Court held in forjusticc [2018] 1 IR 417 @162): . .21! egg}; that portion ry?tbej?dgmear Ibo! conform who! eorzrz'dered to be mended and meeting [or the :36!qu deemed 2'7: {be care were can be said to be ?nding on moregzeent room. ?Moreover, Macken j?s observations at ?259 were cast in somewhat equivocal terms (eg. ?g?bmfore r.34(12) oftbe Aer does opp?l, and I do not decent Zoe reiponde?f bar amides/Jed it doe: The Court of Appeal held that Fennelly] had, in fact, agreed with this outcome and that it was not credible that Murray and Hardiman] would have stated agreement with the judgment of Macken] if there was a demur on this point. However, Fennelly] expressly referred to the applicability of the presumption in general terms and held at p.31 that the FOIA ?proceed; on oprem?mtz'on ofdr'rdorme stating:- This is best exempli?ed by which provides that, where a decision by the public body to refuse access is being reviewed by the respondent, "a derision 2?o referee to grant a reguere wider .rew'ion 7 Med! {9e premmed no! to leave been?m?z'?ed zen/err the bead concerned room to tbe magnetron of tile omm?m'oner that {be dea'n'oez wai?jmz?g?ied?. A self?described obiter cannot acquire precedent status by reason of the fact that other members of the Court did not dissent on an obiter. Consequently, the Commissioner is not asking the Supreme Court to overturn its own authority but, even if that was the case, the Commissioner submits that Macken J?s approach is not correct in law. Second, as a matter of actual application it is not consistent with the statements of rationale as outlined above or, indeed, with other jurisprudence including that of this Court. In Sbecdy, under the heading of ?52? oft/5e Act of 1997 being one of the exemptions) Kearnsj., delivering the majority judgment, stated: 21. 22. 23. ?7 3 On this z'ssne, the that the appettant had not thsehoged the owns 0: shonn'ng that adverse e??eet eon/d resntt in the granting (f access to the records and that no satt?ugf?tetogy ewdenee had heen adduced in this regard 78 The onns to ?ot?odnee on the/test notice petty and in the ohsenee of serene the respondent was tenders hot?d against the?rst notice going. A enete assertion of on expeetotz'on of non-cooperation from teaching staff eont?d never constitute stg?feient evidence in this regard .. . These passages were not considered either by Macken j. in Rotnndo, or by the Court of Appeal in Enet. Although Kearns did note that 8.53 of the Education Act, 1998 had been .. eon/noted hath h} the respondent and the exetnst'oe?t throng/J the preset32(1)(o) of the Act of 1997 at no stage did his judgment indicate that application of the presumption was in any way incorrect (and indeed the contrary is the position, as noted above). Essentially, Kearns allowed the appeal on the grounds pertaining to the Education Act, 1998 and its use of the word ?notwithstanding? effectively displacing or ?ooenid?ngf the FOI Act (see ?67, also ?62 and In the same case Fennellyj. referred to the 1997 Act creating a . . presumption openness? - remarks not easy to reconcile with the proposition that what is now the 5.220 2) presumption does not apply to assessing whether exemptions are at play or not. In Minister for Health Information Commissioner [2019] IESC 40 (27 May 2019, post-dating Beret), this Court (per Finlay Geoghegan J.), after referring to stated: ?66. The Conttnisnonet? in his snhenzssions e's comet that there is on ones on a head qfdebon?tnent to satisl? the Commissioner that the (tension to refuse was (testi?ed. I this instance, the dea'st'on was that the teqnested was not a record held hy the Depoetenent nether: the tneanzng cf 10 6 7. I do not tomz'der that the in my my overboard the obtigatz'om ?lmed on a matte body which make: :2 de?ne): t0 trims attest to a record to 21mg; that decision to the magnetic): at the Commissioner: 24. It is accepted that this judgment was not concerned with an exemption, but rather with whether records were ?held? by a public body. Nonetheless, the general statements regarding a public body?s ?obligation? to ?justify? are a correct interpretation of what is now 3.2202). 25. While Finlay Geoghegan]. 668) did quote from ?209 of Macken J?s judgment in Rotunda, that paragraph (on the issue of a ?broad right of access?) is quite separate from Mackenj?s obiter dicta regarding the presumption much later at ??258?59, and no argument regarding the correctness of those obiter dicta was in issue in the 2019 case. That Macken J?s earlier remarks at ?209 in Ramada present no dif?culty to the argument that applies to exemptions is neatly demonstrated by Cross J?s reliance in Wesnvood Information CommisSane-r [2015] 1 IR 489 (at ?46) on effectively2 the same part of Macken J?s judgment to hold: accept tbatpmpontz?o? that white than! 2'5 a in?rm? ry?dz'ittormr there is I20 trivia/ate night to dirt/0mm 26. Third, there is nothing in which says the presumption is anything other than as described and Macken J?s obiter dicta, and the Court of Appeal?s endorsement of sarmz, displace the normal rule of statutory interpretation i.e. the natural and ordinary reading of without any of the criteria in 5.5 of the Interpretation Act, 2005 applying, much less the elaboration of the 5.5 test laid down by this Court in Kadri Governor of Wheat?eld Prison [2012] 2 ILRM 392. To state the obvious, a ?Eteczrz'oa to re?ne to grant? includes a public body?s ?decision to refuse? on the grounds of an exemption. Far from the subsection being ?obscure or ambzgaom? Macken herself acknowledges it to be: .. a statement which, W, appear: to appg'y to all! dearz'om" @259). Far from its literal interpretation being ?abmrd?or not re?ecting legislative intent the literal reading chimes fully with the Oiteachtas? purpose of public informational access ?to the greatest extent pam'bta? as posited in the Long Title, a purpose underscored by the Oireachtas in 2014 when it added 5.1 1(3) to the OI Act. The statutory basis for departing from the literal wording is absent: a point not referenced by either 2 Cross J?s quote appears to come ?om ?207, but ?209 follows logically from this. 11 Macken]. or Birmingham P. Macken J?s subsequent reasoning which appears to stem from the fact that (what is now) s.ll(7) provides that there is no right of access to an exempt record - alters this not one whit: there has still been a decision to refuse. Furthermore, in the present case, it is completely arti?cial to view a ?decision to refuse? as anything other than the aggregate conclusion reached by a head on both the applicability of 3.316(1) and the application of the public interest test in The public?s practical ability to access the record depends on both of those conclusions. 27. Fourth, Macken] reasoned that the presumption had no role for exempt records because the right of access did not exist in relation to same. In this respect, regard can be had to the now applicable s.11(7) of the (7) Nothing in this section shall be construed as applying the right of access to an exempt record? where the exemption is mandatory, or where the exemption operates by virtue of the exercise of a discretion that requires the weighing of the public interest, if the factors in favour of refusal outweigh those in favour of release. 28. The right of access, it is said, arises only where the record is not exempt. If there is no right of access, then there is no logic or reason to applying a purposive approach or an approach based from an orientation that favours access. 50, whereas Macken) had no dif?culty with the presumption applying to roamed 33;! {be rig/5r cyfamm" she had difficulty with the presumption applying where that right did not exist. This, however, does not really advance the argument. The right of access is the end result of the application of the FOIA. In some cases, the right of access can be ousted by the madame): that a mandatory exemption applies. However, that ram/mien is the outcome of a process of reasoning, evaluation and judgment. The point is really this; reciting that there is no right of access for an exempt record does not actually have any logical bearing on the question as how the presumption should be interpreted and applied to a decision making process designed to determine whether in fact the record is exempt. This is because the right of access is a conclusion reached after the process of evaluation which is, of course, 12 the subject of the review before the Commissioner. Indeed, Part (a)3 of the de?nition of an exempt record is .. a record if! re/m?iozz In which {be gram: (yr em POI request way/d he referred perimeter; to Part 4 or if} w'??ue 0cher 5, Whether information is in fact ?exempt from disclosure? or not is therefore tied to, and dependent upon, a process of adjudication. 29. Of course, the logic of the argument is that if the FOIA dz'reet?y mandates a refusal then how can that presumed to be unjusti?ed? The issue, however, is that the refusal is the product of human decision-making over which (it has to be accepted) reasonable minds could disagree. It may be recalled that in FF 1? haematite? [2009] IEHC 574 Clarke] held that ?it it dear that the :?ateaiz'orz (ft/2e Oz'rearbtar 1m: Ma! #15: exempteem aZlowed Part I I I oft/1e Ac)! {if 1997 we to be e'm?egbrei?ed remicez'eey and app/red paring/y. [fem exemptions are q??brded 1'00 wide an interpretation, the mfma! referees: roar/d become the rule z'mz?ead of {be exceeds? and the)? woaid eiear?fnm?mz?e the pn'magy shimmer oft/7e Act qf 1997. The Respondent?s position (and, indeed, Mackenj?s approach) do precisely this. They allow the notion of an ?exempt record? to be raised to such a level that it ousts the underlying application of the presumption which, itself, is the principle engine of the FOIA. By concluding that the nature of an exemption is such as to render a refusal based on an exemption one which does not require justi?cation, the primary objectives of the FOIA are frustrated. Taking 3.36, for example, there is clearly a host of decisions, judgments and evaluations that the FOI body must make in reaching its conclusions on 336(1). Even assuming that exemption arises where s.36(1) alone is satis?ed, the purpose of the presumption is that these types of processes that are adverse to disclosure in any given case require to be justi?ed by those insisting on their correctness before the Commissioner. 30. W?hether information is in fact ?exempt from disclosure? is therefore tied to, and dependent upon, a process of adjudication. This is apparent when one has regard to how the de?nition of ?exempt record? is cast namely whether the grant of the F01 request ?would be re?ned? or not. It is correct, tautologous even, to say that the presumption does not apply to a record which is actually exempt (in the sense that it has been determined to be exempt), but that provides no useful insight. Prior to the determination of whether the ?z'njbmatior: [is] exempt dirt/0mm?, there is no evident ?Hg??iezdgi? with an onus of justi?cation operating within the decision?making process. 3 Part is not relevant. 13 31. 32. 33. Fifth, MackenJ gave the example of how it is dif?cult to see how one would ?justify? a decision to refuse ?a retard wbz'rb but been or is prepared to be :abmzm'd to the Goaemment?r it: romz'demfion.? It is not unreasonable to read her dicta as querying what issue could arise over whether something was or was not a record submitted to Government for its consideration. This concern has no application to the more nuanced exemptions which have no stand-alone existence independent from the conclusion reached on the inexorably following public interest balancing test and therefore cannot be persuasive in support of the proposition that the presumption does not apply in the case of those other exemptions. But even regarding Government records, the logic is still not satisfying. The point made was that either the document is such a record or it is not. However, what if in a given case the dispute arises from what it really means to prepare to submit something to Government? This is not fanciful. Rather, it shows that beneath even apparent ?easy cases?, judgment and interpretation must be exercised. The purpose of the FOIA presumption is that where judgment and interpretation is exercised contra disclosure, that has to be justi?ed. In truth, Macken J?s effectively characterises the label of ?exempt? as self-executing or so self?evident that there cannot be no argument about it. Hence there should be nothing to justify. This is dangerous. The status of ?exempt? arises only after (in the context of 5.36) derision: are taken which, in a very real sense, could be the subject of reasonable disagreement. The point about the presumption is that decisions by heads about their own obligations in disclosure under the FOIA (that lead to refusals) should be presumed to be unjusti?ed until they are justi?ed. There is, therefore, simply no scope to accommodate any of the Minister?s submissions on this point within either the plain text or the stated purpose of the FOIA. Sixth, neither Macken J. nor Exact had regard to which provides: ?a decision to grant a reqzmt to whirl? 5.38 appiies he presumed Io 135m: beenyim'z?ed .. . unless the person concerned otherwise satis?es the Commissioner. However, 5.38 applies only to ?an POI request to wbz'cb 535(3), 1.360702? ?375 appz?zsi? all three of which are exemption sections. Therefore, the Oireachtas clearly indicated that a presumption in favour of disclosure does indeed apply where exemptions are at play. In UCC, Simons J. noted, but did not determine this argument, merely observing (correctly) that: ?Tbs argument as: t22(72)(a) ?rms? no part of the CramI ry'Appeai?'jzm?gmm! With respect, that is precisely the point, and affords a reason why this Court should not endorse Bret. 14 34. 35. 36. 37. (ii) Seventh, a refusal of access must have a basis under the FOIA and leaving aside administrative reasons for refusal, those reasons will arise largely under Part IV and of the FOLA. This re?ects the vast bulk of the cases before the Commissioner and the Courts. The question then legitimately arises as to what actually applies to if the Court of Appeal is correct and if that correct, then why does the FOIA not so expressly limit the presumption entirely away from application to Part IV and Eighth, Macken j?s analysis that the presumption does not apply to exempt records is out of step with the position elsewhere. Indeed, in NAM for Envri?onmental Information [2015] 4 IR 626 O?Donnell I noted an ?z?ntematzhm/ trend toward; greater dzirfamre cy?z'?omzafz'on, {fjcm MW, in Matron to pubiz'c bodz?er. The international trend acknowledged by O?Donnell] is evident in both the statute law and the decisions made in relation to OI in other jurisdictions. Ninth, if Macken J?s obiter dicta are correct, one of two things must be true: in a review by the Commissioner either the onus lies on requesters whenever a public body has asserted that an exemption applies, or no onus of justi?cation is permitted to be applied by the Commissioner either way. Both propositions are extremely problematic; either considerably moreso than applying the onus of justi?cation to public bodies. Regarding the ?rst proposition, the onus cannot sensibly lie on the requester. Three observations might be made: At a practical level, it would risk giving rise to an impossible, and illogical, hurdle. The requester, by de?nition, has no access to the records, and therefore would face obvious dif?culties in discharging any onus of demonstrating why an exemption does not apply. Other type of decision-making regimes are not comparable precisely because this asymmetry of information/ knowledge on the part of FOI requesters, prior to any release to them, is entirely sui generis. The principle that he who asserts must prove, should apply to public bodies asserting exemptions to the right of access. After approximately 22 years of OI case law, it is not evident that any authority would support imposing the onus on FOI tequesters in this way. To the contrary, in Wertwood, a statement in the Commissioner?s of?ce?s preliminary view indicating that the onus 15 had shifted to a requester was held to be a ?ngg/zgimal error? @104), in light of s.34(l 2) (see In MCK Information Commie-mono! [2006] 1 IR 260 (which admittedly did not concern the presumption), this Court overruled the Commissioner?s requiring of evidence from a requester (admittedly on distinct constitutional grounds). 38. Regarding the scenario of no onus applying either way, again three observations might be (ii) made. The fact that the public body is the custodian of the information militates against no onus of justification applying to assessments of the exemptions. While the Commissioner can request the records;it is the public body which is best able to how disclosure of inforrnation, for example, could occasion loss or prejudice to it for the purpose of commercial sensitivity. There is no reason, certainly no perSuasive reason, why the Oireachtas as a matter of policy would have provided for an onus of justi?cation in respect of all decisions to refuse, and then would have chosen to carve exemptions out of this. It would make no sense. If anything, the exemptions seem to epitomise par excellence where the presumption can most meaningfully and effectively operate in contradistinction to more ?bright?line? or technical grounds of refusal (where the presumption also applies), such as non-existence of a record or the record not being ?held?. If s.22(12) does not apply to exemptions, this creates uncertainty regarding decision- making by the Commissioner. Taking just one example, if (as here) the Commissioner requests the public body to identify which parts of records are deemed to be commercially sensitive and if (as here) the public authority does not do so, can this be taken into account or would the Commissioner thereby err by placing an ?onus? on the public authority? Canons of statutory interpretation militate against such uncertain consequences for decision~making In People (AG) VMch/nn [1967] IR 232 this Court stated: .. [be warrior: z'r whether [but alternative it 00225231672! wit/J ?196 moor/J warning aft/be garter); Mair/3 the statute pyrpom to mgafate In Campbeli O'Dome?, Boyle and the 1111319005] IEHC 266 Finnegan stated: ?12? perv/125152516 to have regard to comeqaerzcer reforming a nature #2363 Home 16 39. Tenth, the approach by the Court of Appeal also leads to serious inconsistency. As this was a 5.38 case it follows that the Respondent bad, in fact, determined to grant access subject to the views ofeNet. Those were received in accordance with 5.38 and access was refused. If, however, access had been granted then eNet would have had a right to seek a review before the Commissioner and under 5.22 (I 2) a decision to grant weer: would have presumed to be justi?ed unless eNet satis?ed the Commissioner to the contrary. The point here is simply that in a case like this (Le. a 3.38 case to which 5.36 applies) the onus is always on the party opposing release to justify non-release. In short, this shows the iegislative presumption towards disclosure. Further, under the presumption clearly applies to a decision to grant i.e. it is presumed justified unless otherwise shown. This, of course, involves (in 3.36, for example) a consideration of 336(1) and (3) Thus, this supports the very basic point set out above that the presumption is intended to apply to the aggregate of concerns that underpin the decision either to grant or refuse. 40. Eleventh, strictly in the alternative, and without prejudice to the foregoing, if this Court were to ?nd that Macken J?s obiter dicta represent the law, then the nuances in her judgment should be properly appreciated and clari?ed. This is because there are aspects of the passages which are not entirely dissimilar from the Commissioner?s position namely that an onus to justify exemptions does apply to public bodies. Macken]. stated @259): it define/3? to see lion: now 5.220 wezda? appZy to t/Jepmez'rz'em qfn?. 79 to 32, other than (be bend games? meeting the term? aft/2e various reviewer. ?However, the head ?meeting? the terms of the various sections, is, on one view, not easyr to distinguish from the onus resting upon the public body at least to the extent that it envisages something beyond mere assertion by the public body (Simonsj at ?58 appears to consider that mere assertion could not be the test), and in particular to the extent that it envisages the Commissioner being satis?ed. The same point could be made regarding Macken J?s later statement at ?259 as follows: ?thbere?are 5. 34(f2) qflbe Art deer @199, and I do not greet)! the Nipeadeiz! bar erreb?'reed that it ether," to Part records, rhea ceqb?ame we the term; cf 5. 26(7)(a) alto appear: 5mm: te?ertg? the demise made. In tbeprereat rare I are: ralig?ied {but that legaf reqm'rement was mmp?ed we; Igy the membrane made an the par! at the agpelfa?i Impending to the criteria mentioned in the section emf)". aadfmm (be 1m: qfitr origami referred 4 With these words "not accept?, ?established? Macken J. clearly left open the question of the applicability of the presumption, rather than reaching a ?nal view on it something which it is not evident was appreciated by the Court of Appeal in Enet. 17 41. The confusion arising out of Macken j?s comments, endorsed in BM, is manifested in 42. their application in the judgment here. Referring to Macken j.?s remarks, the judgment noted . . the rationale gfibirjirdgzoeor z'i Ibo! once (2 record roam: with}: a moodatogy exemption, More no additional! re?nement :ojurtg? Ibo dominion to rig/me disc/arms? (see also Indeed, with reference to UCC, the Commissioner respectfully disputes that a reading of the Decision reveals that it demanded any ?additional? justi?cation beyond UCC being asked to justify that the record did in fact ?come within? 336(1) ?50 of the judgment begs, rather than answers, the question of how it is to be assessed that a record ?more: mini}: :1 moodatog; exemption?, and of what the Commissioner is to do in assessing matters like this. The Commissioner submits that this can only sensibly be achieved by the public body in the first instance explaining how particular parts of the records are contended by it to engage the exemption at issue in other words, why the decision it has made to that effect is justified. The Standard of Review It may be helpful to set out how this arose. The Respondent argued that the High Court applied an overly deferential approach. The Court will see the High Court set out the well- established principles including those in Dory The Irg?omotioa Comm'm'omr governing an appeal from a decision of the Commissioner. Similar standards can be seen in the decision in Miorb Commz'm'omr?r Environments?! Iig?omotz'on [2017] IECA 223 at paragraphs 12?13. There is no dispute but that these apply. However, the Minister says that the standards cited compelled the High Court to defer broadly to the Commissioner on issues which the Minister says concern statutory interpretation. In fact, this was not correct as if one analyses the High Court judgment, in substantive ternrs, the treatise of the various legal points arose without any deference in any area where same is inappropriate. a. In relation to the Minister?s point about there was no ?deference? to the Commissioner here (see paragraph 41?42) of the High Courtjudgrnent. b. The Minister?s complaint that the Commissioner erred in its interpretation of 5.235(2) was considered without deference as a matter of law (see paragraphs 44?47 of the High Courtjudgment). 18 c. In relation 5.336(3) the Court rejected (again, without deference) the view that standards adopted by the Commissioner were wrong in law but clearly as is required by the Supreme Court in Sheer/y did not apply a ?full blown? review jurisdiction to the Minister?s complaints about how the 536(3) balance was actually struck by the Commissioner. Indeed, the Minister criticses the High Court judge for holding that the decision of the Commissioner was not aim: aim. The language of vim indicates that the High Court was considering the legal entitlement of the Commissioner to make the various references which the Minister criticises. 43. So, whereas the Minister says ?there no role for o?g?reooennuboa it come; to {be interprofoi'ioo ofrrotm?oi? there was no such mischief here. Indeed, the dichotomy between ?law? and ?fact? is simply wont to obscure issues of mixed law and fact, such as the balancing test required by 536(3) of the FOIA which does not require ?full blooded? review as has been unambiguously stated by the Supreme Court in 519mg! Io?malioo Commissioner [2005] 2 LR. 272, at 290.5 44. The dif?culty now arising, is that although the Court of Appeal agreed with the above, it nonetheless suggested that through the citation of principle, the High Court had been overly in?uenced by principles more applicable to judicial review than to a statutory appeal. This, of course, was in response to the Respondent?s point that the High Court erred in applying ?judicial review? principles to the case. This involves the double contention that ?judicial review? principles involve more deference and they are inappIOpriate in the context of an appeal on a point of law. 45. The point seems to be that the High Court?s citation of established principles in Dash: a The Iryomotz'orz Commim?oaer [2001] 3 IR 439 and in Kz'liz'i?oo 22 Information Commz'm?orzer [2003] 2 IR 402 indicates a fundamental error in orientation. In reviewing those (and other) authorities the same High Courtjudge had said in erIQ'ZlerI Izyommrz'on Commoner/Ia,? [2016] IEHC 27, at p21 that 5 See NEPPC An Bord Pleandla [2016] IEHC 300 at para. 140 where, a?er discussing the point that pure issues of law engage non-deferential review in the High Court Humphreys I observed: The application of legal criteria to particular facts is a mixed question of fact and law, in relation to which some deference to the decision-maker may however be 19 It seems to we tomjoze {bar a! Ibzsjimotmv, it is beyond age/mot too: the standard to be we: or: (nope/Zoo! in s. 42 upped! 2's mag/53;; indistz'agmsbaofe?om Ibo: applied {be room? in jad'c?z'ot? meow mailers. doosz'oa oftoe mspoodont mid not be inter?red unless it is ember oosod on no m'demo or?z'os in reason and common some. is Mas imrzzotm'o! g'ftbo court would have arrived a: dg?i'rrat decision based on for: some evidence. Io?mzoos no?! ooz? be set aside mdess they are moo Ibo! no mammoth decision maker maid have drawn zoom. 46. With all due respect to the Minister, it is patently clear that this is actually correct insofar 47. as it summarises the principles set out in D939. It is not reasonable to posit (as the Minister did) that the High Courtjudge somehow misunderstood that irrationality-esque principles did no! opp?l to, for example, the pure legal issues in the case such as related to Indeed, paragraph of Doo?: actually says this:- y?t/Jo reached mob bodies shows root {2551) have token on enormous new (ft/3r: Zoo), {bot also is gmmd?ar setting aside the resulting The argument is particularly odd because, of course, a legal error will generally vitiate a decision on judicial review where curial deference applies to the application of expertise and the exercise of discretion, not to legal interpretation. However, the Court of Appeal has held that citation of actually applicable case law amounted to an over-in?uence from (unspeci?c) principles of judicial review. With respect, the principles applicable on: virtue/{y indistinguishable from judicial review. One simply has to examine the overarching principles on the Court?s jurisdiction as summarised in Dooigx and {OZ/idol coupled with a clearly established burden of proof on the appellant,3 and with a long accepted principle that an appeal on a point of law is not a do appeal,9 and as expressed by reference to O?Kog?o style standards in relation to issues of mixed law 6 Indeed, insofar as the Minister criticises the High Court for not expressly citing the sentence which follows the Deely principles to the effect that the interpretation of a statute attracts no deference, it may simply be noted that other High Court Judges have tended to cite the principles ?'om Deely without further citation; see e.g. 0 Gran? Information Commissioner [200?] IEHC 152. 7 Killileo Information Commissioner [2003] 2 IR 402 3 Westwood Club v. Information Commissioner [2015] 1 IR 489 following Deeiy in determining that the onus of proof is on appellant. 9 O?Grady Information Commissioner [2007] IEHC 152 at page 8 appeal is limited in scope and is not a hearing De Novo 20 and factw to see the merit in the observation. Indeed, the same position applies in other types of statutory appeals. Thus, for example, in lake Lz? and Pemaaeat a Financial Services Ombudsman [2011] White]. stated: "The itatatogy appeaf while dgj??ereolfrom jadia'ai? Review bar may of it: obarae?i'erirtz'ei. not a bearing do [eat an examination ry? ?ee dea'rzoa making process, always baw'og reaped for the pam'ea/ar IoZe oftbe Ombudsman, re! oat in the Art. 48. Thus, the Minister?s point appears that be that by approaching the case like a ?judicial review? romel?laiag has been lost and that something is identi?ed as too much deference to the Commissioner?s interpretation of law. However, any notion that in ?judicial review? there are pare aaertz'oor War! beyond the review of the High Court has to be regarded with a degree of scepticism. As a general proposition in Irish public law, Courts are no longer either attracted to the logic that material; legal errors can be ?within jurisdiction? or necessarily ?xated with how to reconcile a quashing for legal error with a concept of jurisdiction. Rather, cases like Kileea DPP [1998] 1 ILRM and nga/ Dahlia Soa'eg/ 2) Revenue Commimham [2000] 1 IR 270 indicate that errors of law (which are material) will attract certiorari.1L2 Indeed, Fz'i'zgibooa a Law 50mg: [2015] 1 IR 516 is an authority which the Minister relies on as demonstrating a difference as between judicial review and statutory appeals. In that case, Clarke] referred to Deegjz as illustrative of the approach of the Courts to appeals on a point of law and concluded that (in describing an appeal on a point of law) (emphasis added) ?a big/13f degree ofdefereme. sofa.r ar tbe?m?r are roaremea?, ?rpaz'd a} a: appe?ae?e body to the decision (if the instance body in an appeal on a point of law oag'y, at oppored to an appeal against error.? Clarke] canvassed, in oazlfer, whether appeals on a point law must necessarily permit a greater degree of review than might apply in judicial review. But that conclusion was, it would appear, put up against the notion that judicial review may, in fact, tolerate errors of law made by inferior tribunals as being truly within jurisdiction which is, with the greatest of respect, a notion that no longer has any bite i.e. the ?mischief of judicial review being toothless against inferior legal error does not arise. '0 Sheedy Information Commissioner [2005] 2 IR 272 and Gannon v. The Information Commissioner [2006} 1 IR. 27 Le. whereas one can accept that legal errors can ground judicial review, the question of materiality remains. A non-consequential legal error ought not necessarily ground certiorari. A consequential (Le. material) legal error should. ?2 See further Hogan and Morgan, Administrative Law in Ireland (4?11 Ed)(Round Hall, Dublin), Chapter 10, Section E. 21 49. With respect, therefore, the Court of Appeal was incorrect to criticise the High Court 50. 51. 52. 53. judge as it did. The Commissioner agrees that there was actually no ?deference? from the High Court (as all legal issues were considered as legal issues), but there was equally no principled dif?culty with the approach described by the High Court. Indeed, at the risk of repetition it is simply not reasonable to propose (as the Respondent did and as it appear: the Court of Appeal accepted) that the High Court actually was influenced in the statute by ?Kee?' style standards of review. Nor is there any evidence at all that the High Court meant to hold that matters of pure law should be subject to review on an O?Kee?e style basis. The citation of Beefy and Sbeeq?y was correct and it is correct to say the principles applicable are virtually indistinguishable from those in judicial review save, of course, that it may be the case that more deference should be paid to a fact ?nding in a statutory appeal. Arguments Not Made On 12 May 2015, the Commissioner wrote to the Minister requesting submissions. The letter advised of the onus on the Minister to justify the refusal (under of the FOIA) and speci?cally indicated that this should be considered to be a ?nal opportunity to justify the decision taken in this case. Section 22(12)(b) makes it entirely clear that ?0 de?ne}: to rotate to (gran! em POI request time? be presumed no! :0 have been justi?ed unless the head concerned shows to the satisfaction of the Commissioner that the decision was justi?ed.? Submissions were then received by the Minister on 26 May 2015. Absolutely no issue was taken with the relevance of s.22(12) The ?rst time the issue arose was in the papers ?led in Court. On the basis of the above, the Commissioner relied on the well?established law that the Minister, having failed to make any point about in the course of the decision- making process, could not raise it in the High Court. In Wet; Area Heaftb Board a In?matz?on Comminianer [2005] 2 IR 547, at 553 held: 22 It woaid he whoigv amatig?aetogz that a oh appeat thozdd he made nothoat the matter haw'ag?est heea razlred hefore the omeaelrtioaer: 54. Also notable is the Governor: of the the RetingPoor Lyiag in Womea a leg/othzatioa [2013] 1 IR 1 at 29 (?Rotattda?) where Fennellyj held:- I think it it an iategraipa? efaay other thaa portihg?y aa appeai hy eompiete re~ heaizag, that my; point cf {aw advanced or: appeai that! have heea aegaed and determined at ?eet iattaace. 55. Macken] held:- ?[Uhe genera! Kata tequila: that a party add htiag?naam?, at featt ia the context of toga! proceedings, heir entire care, to that theme it no decisioa mahiagpmeete, and hy it teeth; to axe appropriate to ?nd that in tome a'rcatmtaaee, which doe: not appear to arise here, the hospitai was ohhged to hriag?naard hejhre the Commim?oaer atipoiat: cy?law apart which it wiehed to re?t. '5 56. In 1?4waku oonan] held:- A 42 appeatI it hat a de hearing where the appetiaat it at target to advance aeza agemeate or evidence aotpat hyhee the reroadeat. It it are appeal on a poiat ey?iaw which was comedered and dealt with hy the mpoadeat. It if not here Jaggeeted that there are heat argumeatt or evidence not to the appei/aat at the time the mwoadeat decided the matter or that the appeliaat wax ta way, exath/e, hy the Zach oft?egai advice. Stealth remarked, it watt/d he eating; amatig?zctogl if appeat': or: pare point: of tow could he ran oa the hatie of mattere mixed hey'ore, let atoae and decided hy, the mpoadeat. That woatd traag?im the appeal iato something gaite dg??aeatfmea that emieaged hy the Act. 5 7. It is a principle that is well established in other areas such as immigration and asylum law and in statutory appeals from the Financial Services and Pensions Ombudsman. '3 The above authority was cited in Minister for Education Information Commissioner [2009] IR 583, at 591- 592. 23 58. In Hayes Ethane-1'31 Services Ombudsman, (High Court, 3 November 2008), 59. 60. 61. 62. 63. acMenaminj stated: matter digger, [?nd it dg?fmb to see bow tbe dealrz?orz oftbe mipoodeo: eon new be attached on {be bod; of from {bar were not ngzeriz mired or mediated be?ire bite. In Ryan Financial Sen/rhea Ombudsman, (High Court, 23 September 2011) MacMenamin] stated (p.34) that ?Tbe roam babe dethroned orgy tendeegl to reek to broke a care Ibo! was be! made bejore tbe Ombudsman One might consider this to be even more important in FOI than in other statutory appeals precisely because the requester does not get to see the records, but nonetheless has the right both ?owing from the statutory scheme and constitutional fair procedures to make submissions to the Commissioner in support of the request. That the requester must make Submissions without the bene?t of the records, while the F01 body can make submissions by reference to any aspect of the records, renders it if anything - even less acceptable here than in other contexts for FOI bodies not to bring forward all of their points before the Commissioner. For the avoidance of doubt, the prohibition on new arguments in statutory appeals applies to purely legal arguments too, such as regarding 3.220 2). ln Brendan Medica! Hal! Limited Ombudsman unreported, 21 December 2010, Dunne] stated ?Tbe nope?: wiper! mam-doom mated by Brandon edz'erd Had we; be; retired before {be Had it been mired b} Bordon Medical ad, fbe Pemz'om woafd babe oomz'dmd tbepoz'ot and nded or: it. Heir decision be Ibo! regard would booe been/foo! oeprozdded?ir in .13 Tbot being so, bozo eon be tbe core [bot Bordon Media?! Hod am be meat/ed to ram mob on z'rrzre or: tbz'r append I 52'me do no! 166? bore #90! can be pro?table. The point reflects important legal policy considerations. A party has a full right of participation and the decision of the Commissioner reflects that participation. A party should not be entitled not to raise important points and then, in effect, seek to have a decision of the Commissioner overturned because of legal error on such points. The Court of Appeal held that this was not a case where the Respondent should be disbarred from making his argument notwithstanding that he has not done so before the 24 Commissioner. This may well have been because although High Court agreed with the Commissioner on this point, it proceeded to determine the argument anyway. However, the Court of Appeal has added considerable uncertainty to a rule which was of some clarity beforehand and was operated without dif?culty by the Courts. This largely comes from the manner in which the Court of Appeal dealt with the Respondent?s arguments that the rule did not apply. a. The Minister says that the 522(12) point was not argued before the Commissioner and thus, by reason (it is presumed) of his lack of engaging with it, he is entitled now to raise the point. With respect, that is to miss the whole point. The Minister had the ?agenda? and chose not to engage with it. The Minister says the Ramada case should be distinguished. Certainly, in that case one party sought to rely on a point of law never advanced to the Commissioner and on which the Commissioner took no view. However, the jurisprudence as set out above is not concerned simply with the mischief of raising a point that was not even addressed by the Commissioner, but with ?sitting back? and not participating and then seeking to argue roam: the Commissioner with regard to points that could have been (but were not) made. In Rolando, however, the point of law had simply not arisen before the Commissioner. It is very different in this case. The Respondent was expressly told how the Commissioner was addressing the matter and said nothing. The Minister says that any party should be able to raise any issue of law and argues that the above jurisprudence is largely concerned with factual issues and that the adoption of these principles in MoIGZt?ea Iryhmotz'on Commimhner relates to an issue of fact. That is not correct. McKillen wished to argue in the High Court that the Commissioner?s legal interpretation of the then applicable FOIA was incorrect in that the Commissioner followed prior High Court authority in EH and EPH The In?matzoa Commissioner [2001} 2 IR 463 to conclude that once documents were the subject of a discovery order, the Commissioner could not order disclosure. McKillen ran the (ego! argument that this fogs! was incorrect and that the Commissioner should not have adopted it. However, just like in this case, the Commissioner had indicated very early his view that was ?in play?. McKilien never made any submission on that point, but instead 25 engaged over factual discussion about what was covered by the relevant discovery order. The High Court held that McKillen as not entitled to raise the contention that the Commissioner?s legal understanding was wrong because he had never quarrelled with that before the Commissioner. 64. For all the above reasons, this Court should uphold the determination of the High Court 65. 66. 67. that the Minister was not entitled to raise this point. Although it is acknowledged that the High Court still considered the point, as a preposition of law, this Court is asked to re- state the principles as set out above without dilution and to reject the Court of Appeal?s apparent reliance on the Rotunda case as an exception to the rule which, when applied, would apply to the particular facts of this case. Public Interest and Section 36 The essence of this point relates to the Court of Appeal?s conclusion at paragraphs 32?33 that the Commissioner adopted incorrect standards of law in carrying out the 5.36 analysis. Section 36 has been set out above. Section 36(1) refers to disclosure as would ?reasonably be expected to result in a material ?nancial loss or gain to the person to whom the information relates? or disclosure which ?could prejudice the competitive position of that person. The Commissioner did not believe that a reasonable expectation of material ?nancial loss had been made out. However, with respect to the second limb of the Commissioner noted the lower threshold for same (Le. ?could prejudice. . and was willing to accept in broad terms that there was a possibility of the stipulated harm occurring. The Commissioner then turned to consider 5.256(3) and whether the public interest required disclosure. Obviously all of the Commissioner?s conclusions on 3.36 are relevant here in terms of identifying precisely what it is at issue particularly the following:- Enet is managing and operating what the Department has described to this Of?ce as a "unique infrastructure". In contacts with this Of?ce, enet acknowledged that there is no direct comparator to the service which it provides to the State under 26 this contractual arrangement. Therefore, this is not a case of disclosing to the world at large the preferential rates which a private body charges a public body for the same service it provides to other customers. Furthermore, neither the Department nor enet identi?ed for this Of?ce particularly sensitive information within the contract, the release of which would disclose (for example} enet's internal business methodology. 68. Given the complaints as a whole, the passage underlined above is a signi?cant ?nding. 69. 70. 71. 72. Under the heading ?The Public Interest? the Commissioner ?rst noted a range of factors highlighted by the FOIA itself and emphasised a number of factors relating to the openness about the expenditure of public funds so as to ensure effective oversight and that value for money is obtained. The Commissioner then recognised the public interest in protecting commercially sensitive information expressly provided for in 8.156(1) which enables private parties to conduct commercial transactions with public bodies without suffering commercially as a result. The fact that the public interest in openness about the expenditure of public funds is not absolute was expressly acknowledged by the Commissioner. However, he pointed out that it is not sufficient for a public body simply to assert that the requirements of the exemption are met it must engage with the question of why disclosure would prejudice the third party. In principle the Commissioner considered that as the subject of the contract (MANs) comprised a valuable State asset, it was in the public interest to disclose the terms and conditions under which eNet agreed to manage, maintain and operate the asset in order to ensure transparency and accountability in the use of public property and assets and in ensuring that value was obtained. The Commissioner then considered a 3.26 case, Case 99183 (McKeever Rowan Solicitors 8; The Department of Finance) and set out as follows:- These ?ndings were made under section 26, which deals with con?dentiality. Nonetheless, I believe that they identify a principle of openness about the use of public funds and assets which applies equally to the consideration of the public 27 interest under section 36. I adopt the views espoused in the cases referred to above. The parties have not pointed to any exceptional circumstances that apply in this case such as to override the need for transparency. In my view, enet was the successful bidder in a tender process for the use of a State-owned asset which generates revenue and there should be transparency around this transaction. 73. Finally, the Commissioner then speci?cally referred to all the reasons put forward to justify non?disclosure. The Commissioner did not accept the points being made and set out the reasons why very clearly. For the most part, this entailed a rejection of speci?c factual arguments made by the Respondent and eNet which in the commissioner?s view had not been made out on the evidence, These included the argument that release of this information would deter future potential bidders from seeking to manage, maintain and operate this revenue-generating asset on behalf of the State; that the information contained in the records would automatically bene?t future tenderers; that releasing the contract would "totally undermine" enet's business or that the possibility of information being misunderstood was a good reason to refuse access to records. The Commissioner then concluded: Furthermore, I am mindful that section 1 1(3) of the FOI Act requires public bodies to have regard to the need to achieve greater openness in their activities and inform scrutiny, discussion, comment and review by the public of their activities. I consider this to be relevant here in that it is a public interest which equates with "a mine parka? imam! {7y mean! if a wail-known and ertabfz'ibed pong, adopted the or law" as referred to by Macken j. in Rotunda Hospital Information Commissioner [2011] IESC 26. 74. In terms of the public interest test, and by way of summary:? a. The Commissioner correctly identi?ed the private interest invoked. b. Further, the Commissioner correctly identi?ed particular public interest factors in the case. 23 c. The FOIA itself recognises the public interest in ensuring the openness and accountability of public bodies as to how they conduct their business. d. There is a public interest in proper administration of public contracts and in ensuring that value for money is obtained e. There is a public interest in transparency and accountability in the use of public property and public assets. 75. As against this, one must have regard to the ?ndings on the arguments made by the Minister and eNet; a. Not/3.5123 of any persuasive level was advanced by the Minister or eNet. Indeed, in a ?nding which the Commissioner was entitled to make the Commissioner said ?gait/Jar the De nar amt zitmtz' zed ortbir are artimtart ta emetic): the contract; rte/ems at? which would diatom (tar excitable) emf: tatemat laminar: methadatogy. b. Indeed, the Commissioner had already determined that it had not been made out that disclosure could reasonably be expected to cause loss. This was against the backdrop of noting that ?East submit: that attlyoztg/J it cannot he certain that misusing the contract watt/d mare it?rzam'at 6am, it (9:561:65 that it woutd :tg??r rabrtantz'at loner. c. The Commissioner also held that disclosure would not disclose any preferential rates. cl. The Commissioner rejected the argument that ?release of this information would deter future potential bidders from seeking to manage, maintain and operate this revenue-generating asset on behalf of the State.? e. The Commissioner rejected the argument that ?the information contained in the records would automatically bene?t future tenderers.? 29 76. The Minister says that the Commissioner made a legal error in stating that disclosure of the information would not ?totally undermine" the business of eNet. First, this is a ?nding the Commissioner was entitled to reach on the submissions made, particularly in the context of the submission the Minister made to the Commissioner that ?i'be dirt/0mm 12f sz'r z'ig?omation maid undermine E-Naz": barium. Secondly, it was relevant in considering the balancing test. Thirdly, it was only one of the four speci?c matters identi?ed from the Minister and eNet?s submissions and rejected as set out above. 77. In any event, in the balancing process, the Court should appreciate the factors which clearly weighed in faVOur of disclosure. The Commissioner identi?ed the clear public interest in ?Zemper administration quab/ic mnlram and in emmirzg the?! value money it obtainedquzzbfic pmperg'y arzdpabi?ir emit.? Against that is the counter?argument i.e. disclosure of commercially sensitive information could undermine eNet?s business. Nothing of any persuasive level was advanced by the Minister or eNet in this respect. This is perhaps not too surprising because the Minister had initially taken the view that the public interest required disclosure and, for reasons as yet unexplained, changed its mind on that on receipt of submission from eNet.? In this respect, the Minister?s reliance on the decision of the Commissioner in Timer Daparmem tymempo? (Case No. 0600054, 27 july 2010) reveals more about the correctness of the Commissioner?s approach. In that case (as set out in paragraph 96 of the Minister?s submissions) the Commissioner was able - on the submissions before him to conclude that the speci?c prejudices advanced in ?rst case were made out which was simply not the case here. 78. The Court of Appeal, however, held that the Commissioner was incorrect to recite that eNet?s business would not be totally undermined by disclosure, because it posited a legal standard which was not found in the FOIA. With respect, this approach incorrectly characterises a factual ?nding made by the Commissioner as the application of a legal standard when this is manifestly not the case. 79. In this respect, it is important to appreciate that at this point the Commissioner is considering 536(3) and the concept of the public interest. The FOIA does not limit the factors which may be involved in the public interest. Thus, of itself, the fact that a particular aspect of the public interest is not referenced in the FOIA cannot be '4 And, even more curious, the Minister?s actual refusal contained no reasoning on the public interest test under 536(3) at all. 30 80. 81. determinative. In this case, the Commissioner was not, as a matter of law, positing a legal standard but considering whether, on balance, the public interest required disclosure more than refusal. The Commissioner did not hold that there 221m! be a total undermining of business before the public interest does not warrant disclosure. Indeed, the question arises as to if this kind of recitation in a Decision is inappropriate, how can the Commissioner make decisions? One could equally see complaint if the Commissioner simply recited the View that the public interest required one conclusion over another. In this case, the Commissioner has clearly (and in accordance with how the Supreme Court said the task should be approached per Rotunda) set out the competing factors and noted that nothing persuasive was advanced by the Respondent or eNet to show why the public interest did not favour disclosure. The factor that it would not totally undermine a business was reasonable to set out. It is true and not challenged in fact. If, on the other hand, it was the case that despite the counter?factors identified, a disclosure may totally undermine a business, then a different balance may be struck but it is fact speci?c and in this case the Commissioner was doing no more than highlighting what had and had not been shown to his satisfaction. Similarly, the Court of Appeal held that a legal error was made in the reference to ?exceptional circumstances.? While paragraph 31 states that the Court would not have condemned the decision on this alone, paragraph 30 nevertheless criticises the Commissioner for adopting a ?threshold?. Again, in this instance, the Commissioner is carrying out the mandated public interest balancing test in 536(3) and is considering the particular features of the public interest that arise in this case which is about a public body wishing to maintain details of expenditure of public money secret. Here the Commissioner has identi?ed what are, respectfully, largely overwhelming factors which mitigate towards disclosure serving the public interest. Thus, (and bearing in mind that the Commissioner has determined that 3.315(2) is engaged}, to reach a contrary conclusion would, in truth, require something exceptional (see for example Minister for Agriculture Information Commissioner [2000] 1 IR 309 at 319). However, nothing even remotely compelling was advanced. As such, the observation of the Commissioner was quite pertinent given the m?f?a/ arguments made by the Respondent and eNet. This is not a particular ?legal threshold? but rather a specific conclusion reached on the public interest balancing test in this case and there was no legal error. 31 BRIAN FOLEY BL NUALA BUTLER SC [11993 words] 32 Appendix Chronology 1. On 2 january 2015 Mr. Sheridan made a Freedom of Information request to the Appellant.15 On 14 january 2015 the Minister wrote to eNet (second-named Notice Party) saying that it was required ?under Section 38? to write to eNet for its submissions. It was stated that the records were being considered ?in line? with 5.35 and 3.36 and eNet was advised of the prelitninary view of the Minister that the public interest lay in favour of releasing the records.15 On 3 February 2015, eNet made a submission to the Minister in response to its request for same of 14 january 2015.? Therein eNet set out its position that the records were commercially sensitive and that the public interest did not require disclosure. In its submission, eNet did not seek to rely on 5.35. On 16 February 2015, the Minister wrote to Mr. Sheridan (First-named Notice Party) outlining its reasons for refusal relying on and 3.326(1) and (2).18 he same letter advised Mr. Sheridan of his right to appeal to the Commissioner. There followed communications between Mr. Sheridan and the Minister regarding the applicability of an internal review versus an appeal to the Commissioner.? On 2 March 2015, Mr. Sheridan submitted an online application for review of the Minister?s decision to the Commissioner. The application was acknowledged by the Commissioner by letter of the same date.20 The Commissioner corre3ponded with Mr. Sheridan and the Minister in respect of the processing of the appeal. On 26 March 2015, the Minister emailed the Commissioner enclosing certain documents.21 On 27 March 2015, the Commissioner wrote to the Minister con?rming it was accepting the application for review and asking for sight of the records the subject to the F01 request, along with a schedule of same, by 14 April 2015.22 On the same date, the Commissioner also wrote to Mr. Sheridan stating it had accepted the application and was proceeding to review and sought Mr. Sheridan?s submissions by 14 April 2015. On the same date a similar letter was sent to eNet with a same date for submissions Le. 14 April 2015. On 10 April 2015, the Minister forwarded unredactcd copies of the records in issue to the Commissioner. These are not exhibited. 15 See Tab 1, of Ms. Rossi?s af?davit. ?6 See Book 1, Tab 1 of Ms. Rossi?s af?davit. ?7 See Book 1, Tab 2, of Ms. Rossi?s af?davit. '3 See Tab 5, ost. Rossi?s af?davit. '9 See Tab 6, of Ms. Rossi?s af?davit. 2? See at page E. 2' See at page 8 and and of Ms. Rossi?s af?davit. 22 See Book 2, Tab 3 of Ms. Rossi?s af?davit. 33 10April 2015, an email was received from eNet which stated that disclosure was opposed23 and which attached a copy of eNet?s initial submission made to the Minister of 3 February 2015. No new submissions were furnished to the Commissioner by eNet. On 12 May 2015, the Commissioner sent a letter to the Minister and submissions were invited by 26 May 2015.2?1 Notably, at this point, the Commissioner stated his View that of the Act jib/am the arm; on [be pabir'r body quzlef?tiag the animations?? that it: decision to re?ne to grant a request warjmt?ied No point was raised by the Minister in respect of this. On 26 May 2015, the Minister provided its submissionszs On 20 July 2015, the Commissioner contacted the Minister by telephone with some queries which were addressed and a memo of this conversation created. The telephone call was followed up by an email at 14.35 of the same day and the Minister?s position sought on certain issues set out in the email by 27 July 2015.26 The Minister replied on 24 July 2015 setting out its position on the issues outlined as above.? Having received that, on 29 July 2015 the Commissioner emailed the Minister setting out two points on which it was said that contact would be made that week to obtain clari?cation on.? Further information was received from the Minister on 30 July 2015.29 On 13 August 2015, the Commissioner contacted eNet by email indicating that it hoped to discuss some queries with eNet30 The phone call took place on 18 August 2015. This was then followed up on 19 August 2015 with an email to eNet wherein it was said that if there wished to be any follow up information provided it could be done by 24 August 2015.3'1 This email was acknowledged by eNet.32 On 21 August 2015, eNet requested an extension of time to 21 September 2015 for their response. At this very late point, eNet stated that they ?don?t fully understand the process on the decision being made and how it is concluded?.33 On 24 August 2015, a memo was created of a telephone conversation between the Commissioner and eNet where the issue of an extension of time being refused was discussed and the process was discussed.34 There followed further emails between eNet and the Commissioner on the same date continuing the refusal of an extension of time and addressing other discrete issues.35 2] See at page 9. 24 See Book 2, Tab 4, of Ms. 25 See Book 2, Tab 5, of Ms. 35 See Book 2, Tab 7, of Ms. 27 See Book 2, Tab 7, of Ms. 23 See Book 2, Tab 7, ost. 29 See Book page 10. 3' See Book page 11. 33 See Book page 12. 35 See Book 1, Tab 3, of Ms. Rossi?s af?davit. Rossi?s af?davit. Rossi's af?davit. Rossi?s af?davit. Rossi?s af?davit. Rossi?s af?davit. Rossi?s af?davit. Rossi?s af?davit. Rossi?s af?davit. 34 19. In any event, on 24 August 205, eNet did, in fact, provide its views on what it deemed commercially sensitive and it submitted to the Commissioner a redacted version of the Fourth record identifying what eNet considered to be the most commercially sensitive information. 20. Thereafter some communication ensued with the Minister, eNet and Mr. Sheridan addressing various matters which are not material to this appeal. 21. The Commissioner made his Decision on 30 November 2015. 35