THE SUPREME COURT Record No: 2018 No. 12 MCA IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 2014 BETWEEN UNIVERSITY COLLEGE CORK Respondent AND THE INFORMATION COMMISSIONER Appellant AND RAIDIO TEILIFIS EIREANN Notice Party SUBMISSIONS OF UNIVERSITY COLLEGE CORK 8,591 words (excluding footnotes) JD ?5 101 INTRODUCTION 1. At issue in this appeal is the decision (?the Decision?) of the Information Commissioner (?the Commissioner?)] to compel the Respondent to this appeal to release four speci?c records (?the Records?). This was in response to a request made by Raidio Teili?s Eireann on 6 January 2017 (?the Request?) pursuant to the Freedom of Information Act 2014 2. The Records concern the terms of a ?nance agreement between UCC and the European Investment Bank (?the Finance Contract?). 3. The Commissioner found that none of the Records contained commercially sensitive information within the meaning of section 36(1)(b) FOIA (save to the limited extent that the Finance Contract contained information relating to third parties). 4. By Judgment dated 3 April 2019 (?the Judgment?), the High Court found the following errors of law in the Commissioner?s Decision: A failure to have regard to relevant considerations, including the impact or adverse effect of disclosure on UCC, as opposed to the EIB, and the redactions to the Finance Contract as provided to the Commissioner (?Relevant Considerations?); An error in statutory interpretation in failing to recognise that section 36(1)(b) is disjunctive and in imposing too high a threshold for the ?competitive prejudice? exemption under section 36(1)(b) (?Interpretation of Section References will be made to ?the Commissioner? in these Outline Legal Submissions, albeit that it is acknowledged that the Commissioner delegated the power to make the decision to Elizabeth Dolan: Af?davit of Elizabeth Dolan, sworn on 21 March 2018 Dolan Af?davit?), ?14. 2 Exhibit Tab 1. 102 (C) An error in mistakenly imposing a presumption in favour of disclosure of an evidently commercially sensitive record, requiring UCC to justi?z the refusal of access of that record (?Presumption Issue?). By this Appeal, the Commissioner asserts that there were errors of law in the Judgment under these same headings. In summary, 4 of the 10 grounds of appeal advanced by the Commissioner concern the issue of Relevant Considerations.3 A further three of the grounds of appeal relate to the Interpretation of Section One of the grounds relates to the Presumption Issue.5 The remaining two grounds deal with Records 2-4; the appropriate margin of appreciation and an alleged error in relation to interest rates.6 Ground 3 also raises the argument that UCC raised matters in the appeal that were not put to the Commissioner. A. These Submissions will accordingly address these topics as follows: Failure to take into account relevant considerations, Interpretation of Section Presumption Issue, Alleged New Points, and Other Issues. 7. Before turning to this, the relevant factual context will be outlined in summary. 3 Grounds 3, 5, 7, 8. 4 Grounds 1, 4 and 6. 5 Ground 2. 6 Grounds 9 and 10. 103 Relevant Context 8. In November 2016, UCC signed a ?100 million loan agreement with the EIB to support a ?241 million development plan (?the Finance Contract?). 9. The plan involved a range of projects, including Student Accommodation projects, a ?37 million investment in a new Cork University Dental School, and a ?27 million funding of a Western Campus Development. 10. By email dated 6 January 2017, RTE wrote to UCC seeking the release of certain information under FOIA, including the terms of the Finance Contract. 11. UCC fumished its Initial Decision to RTE via email on 10 April 20177 identifying the Records as falling within the scope of the Request. 12. The Records comprise: (1) The Finance Contract; (?Record 1 (2) A report to the Finance Committee of UCC in October 2015 concerning the EIB, including tables of ?nancial details and a presentation (?Record (3) A February 2016 spreadsheet setting out income and expenditure, balance sheet and cash?ow (?Record and (4) A report to the Finance Committee of UCC in May 2016 regarding the loan agreement (?Record Records 2, 3 and 4 are internal UCC documents which re?ect the content of Record 1 and are dealt with discretely (as they were by the Commissioner and the High Court) in Section D. 13. The Initial Decision explained that the Records were refused as they contained commercially sensitive material within the scope of s36(1)(b) FOIA and that disclosure of this information would prejudice the competitive position of private third parties in the conduct of their business, would 7 Grounding Affidavit, ?23; Exhibit Tab 4. 104 result in a material ?nancial loss to those organisations and decrease the likelihood of meaningful engagement by private ?rms willing to partner within the University. This Ml discourage such agencies/companies ?'om working with UCC in the future which would, in turn, have a detrimental effect on the University?s ability to fulfil its objects and to combine with external private bodies for that purpose.?8 (emphasis added) 14. By email dated 18 April 2017, RTE requested an internal review of the Initial Decision. 15. The Review Decision, in which it was concluded that the records in question were commercially sensitive and that had been applied correctly, was noti?ed to RTE by email dated 2 May 2017. It identi?ed that disclosure of the Records decrease the likelihood of meaningful engagement by private ?rms willing to partner with the University. This in turn would have a negative impact on the University 's ability to fulfil its institutional objectives and attract external bodies for that purpose. 16. The relevant dates thereafter are as set out in the Chronology to the Commissioner?s Submissions. In particular: 0 7 September 2017: UCC sent its submissions to the Commissioner; 0 6 November 2017: Commissioner separately sought the views of the - 27 November 2017: EIB furnished its submissions to the Commissioner, together with a redacted copy of the Finance Contract, indicating it had consulted with UCC in relation to same (U CC having agreed with approach); 0 13 December 2017: Decision noti?ed to UCC, directing the release of Records 1-4 (subject to the redaction of certain information about staff and third parties in Record 1). Emphasis added. 105 17. 18. 19. 20. A. FAILURE TO TAKE INTO ACCOUNT RELEVANT CONSIDERATIONS Overview One of the grounds on which the High Court Judge expressly set aside the Decision was that the Commissioner failed to have regard to relevant considerations, namely the impact on UCC of disclosure of the Records and the self-evident commercial sensitivity of the material sought to be redacted from the Finance Contract.9 The Commissioner must have regard to all relevant considerations and disregard any irrelevant considerations. The formulation is well-knownSharpe, the decision-maker must ?have regard to all relevant and legitimate factors which are before it and disregard any irrelevant or illegitimate factor which might be advanced?. ?0 As was found by the High Court Judge, the Commissioner failed to take relevant matters into account, a failure which the High Court Judge correctly found constituted a material error of law, such that the Decision must be set aside. Failure to take into account harm to UCC The failure of the Commissioner to take into account the harm to UCC, as opposed to any harm of EIB, is a key error of law identi?ed in the Judgment: ?Given the submissions which had been made by UCC and the EIB, the Information Commissioner was required to consider the objection based on commercial sensitivity from the perspective of 9 There is no dispute or controversy about the proposition that if the Commissioner failed to take into account relevant considerations this is an appropriate ground of review on an appeal to the High Court; this topic is addressed in relatively short form in the submissions of the Commissioner at 88-91. ?0 Sharpe Dublin City Council [1989] IR 701, 717-718. 106 21. 22. each body. In the event, however, the decision under appeal focuses almost exclusively on the question of whether there would be any harm to the EIB. There is very little reference to the perspective of UCC. 69) - ?In particular, it is to be recalled that UCC had expressly stated that disclosure of the information would compromise the University?s ability to attract the EIB and other such institutions to engage with the University in the future. It was further stated as follows. ?Disclosure of UCC's cost of capital will compromise UCC in the future were it to enter into lease agreements of its assets, Public Private Partnerships or when setting fees. Such disclosure would compromise UCC in its negotiations with other financing providers and also disclose commercially sensitive information on UCC's cost of capital for a range of projects which do not received any public funding. - he fundamental error committed by the Information Commissioner is that he failed to have regard to the impact or adverse e??ect on UCC, as opposed to the EIB. It appears from an analysis of the impugned decision that the primary focus was on the EIB, and in circumstances where the decision-maker had formed the view that the EIB was not a retail or commercial bank, the decision-maker ejfectively discounted the alleged prejudice.? - ?Moreover, as set out at paragraph 72 above, UCC had advanced arguments in respect of the prejudice it would suffer. It is submitted that these are manifestly correct conclusions by the Learned High Court Judge in light of the terms of the Commissioner?s Decision. The Commissioner suggests in his submissions that apprehension of harm was ?unclear? and ?half hearted? but does not suggest that there were no submissions related to same or otherwise seek to justify no regard being had to 107 same; UCC is concerned that this line of argument involves a retrospective attempt by the Commissioner to justify the Decision in spite of the fact that no assessment or even consideration of the key issue of harm to UCC is contained in the Decision. 11 It is relevant to note the submissions that were in fact made by UCC to the - Release of the commercially sensitive information would ?considerably compromise EIB in its negotiations with other Universities in Ireland and across Europe and negatively impact UCC and Ireland in any future dealings with them for future ?nancial - relationship with the E13 could be seriously damaged by divulging such commercial third party details?; - ?disclosure of the information would compromise the University '5 ability to attract the E13 and other such institutions to engage with the - ?disclosure of cost of capital will compromise UCC in the future were it to enter into lease agreements of its assets, Public private partnerships or when setting fees?. - ?Such disclosure would compromise UCC in its negotiations with other ?nancing providers and also disclose commercially sensitive information on UCC ?s cost of capital for a range of projects?. - ?All universities operate in a competitive environment for research funding, international students and for certain HEA such disclosure as requested would compromise competitive position, none of which is in the public interest and would be commercially damaging to UC It is submitted that the High Court Judge correctly found that the failure of the Commissioner to take these submissions into account was an error of law. The matter was a simple one: UCC was invoking s. 36(1)(b) to the effect that disclosure of the Finance Contract and the related documents (which re?ected 23. Commissioner, including the following: support?; University in the future.? 24. ?54. 108 25. 26. 27. the sensitive terms of the Finance Contract) rendered the documents exempt records under the FOIA because of the risk of prejudice to its competitive position ?owing from their release. It was clearly wrong in law to simply disregard or ignore that submission in arriving at the impugned decision. submissions to the Commissioner (as quoted from above) identi?ed a series of bases upon which its competitive position could be prejudiced. These were simply airbrushed out of the Commissioner?s assessment such that a core basis of determination was simply not taken into account by the Commissioner in his decision at all. The Learned High Court Judge perfectly correctly identi?ed that failing and perfectly properly characterised same as an error of law in the sense of a failure to take into account a relevant consideration. One of the primary grounds relied upon by the Commissioner on this point appears to be the proposition that UCC opposed disclosure of the Records in their entirety until these proceedings. '2 Three points arise: First, as a matter of fact, UCC did consult and agree with EIB in relation to the redactions to the Finance Contract and the High Court Judge accepted that the EIB submission to the Commissioner did disclose agreement in this respect. There is no appeal against this aspect of the Judgment. While the Commissioner does attempt to overlook this ?nding, making the submission at 21 that UCC as opposed to EIB presumably did not inform the Commissioner that UCC was endorsing the redactions, this does not negate the unchallenged ?nding of the High Court Judge that EIB so informed the Commissioner. ?3 ?2 See 89. The claim that UCC is precluded or estopped from relying on the redacted Finance Contract in these proceedings is entirely without foundation as a matter of fact and of law and is addressed further in Section of these Submissions. ?3 The submission at ?22 as to trivial differences between the redacted Finance Contract as exhibited in these proceedings and the version supplied by BB is, it is submitted, of no relevance to this Appeal. 109 28. Second, in any event, the error of law lies in the fact that the Commissioner did not consider all relevant material: the issue is not from whom the Commission in fact received relevant material. 29. Third, the question is whether the Commissioner considered the redactions in the context of addressing the commercial sensitivity of the speci?c redacted information in light of the submissions as to potential competitive prejudice made by UCC. Therefore, even if the Commissioner was not aware that UCC accepted the redactions (contrary to the unchallenged ?nding of the High Court Judge), this is irrelevant to the fact that the Commissioner failed to consider the redactions in light of speci?c submissions as to the risk of prejudice to its competitive position. Failure to consider the redacted material 30. Among the relevant ?ndings in the Judgment are the following: 14 he Information Commissioner thus had both the redacted and the non-redacted version of the finance contract. (T his is expressly referenced in the fifth page of the decision). By the simple exercise of comparing and contrasting the two versions, it would have been possible for the Information Commissioner to identi?z precisely the information in respect of which disclosure was being resisted. The information which the E13 sought to have exempted from disclosure had been identified with surgical precision. (870) - "It is self-evident that the redacted material was commercially sensitive information. It refers to matters such as the interest rate, and details of existing borrowings and the precise nature of the ?nancial covenants. This clearly could impact on the competitive position of UCC for the reasons which it had set out in its submission. 14 Emphasis added. 110 31. 32. 33. 34. 35. - ?by the time the Information Commissioner came to make his ?nal decision, he had the bene?t of the redacted version of the ?nance contract. Without wishing to belabour the point, this allowed the information in dispute to be pinpointed? It is submitted that the ?nding that the Commissioner erred in failing to properly consider the redactions is wholly supported by the terms of the Decision and there is no basis for disturbing same. The Commissioner does seek in the Submissions to challenge the Judgment on two grounds under the heading of ?Relevant Considerations,?15 one being that the Commissioner did consider the redactions. However, contrary to the submission made by the Commissioner, the references that are excerpted at 90 of the Commissioner?s submissions do not show any proper consideration of these matters and demonstrate no error in the High Court Judgment. In fact, the inability of the Commissioner to identify statements in the Decision which disclose either due consideration of the proposed redactions to assess the commercial sensitivity of the material proposed to be redacted, or the impact of disclosure of same on the competitive position of UCC, demonstrates the correctness of the Judgment. It is only the statement from the Decision set out at ?90(a) of the Commissioner?s submissions that even refers to commercial sensitivity in the context of the redacted information. The words that immediately follow the statement relied upon by the Commissioner (which words, underlined below, are omitted from the Commissioner?s submissions) are important: ?While the information withheld from the copy of the record provided by the EIB indicated which information it considered to be commercially sensitive, it did not state why it believed this to be the case91. The other ground relied upon is that UCC opposed disclosure in its entirety until these proceedings. This argument is addressed in the next section. 111 36. 37. 38. 39. 40. This demonstrates that, far from engaging in an assessment of the redactions, the only observation by the Commissioner was that the commercial sensitivity was not explained (a manifestly unsustainable conclusion in light of the material before the Commissioner). There is no consideration of the actual content of the redactions. The Commissioner attempts to counter the ?nding by the High Court Judge that there was a failure to take the redacted Finance Contract properly into account by stating ?it is expressly referred to in the Decision?.17 The inadequacy of this response is readily apparent; mere reference to the redacted Finance Contract in the Decision does not evidence any evaluative consideration of same. 0n the contrary, it con?rms the Commissioner was aware of the redactions and simply failed to take them properly into account. The position adopted by the Commissioner was to criticise UCC for not explaining the commercial sensitivity of the documents, and to criticise EIB for not explaining the commercial sensitivity of the redactions, but without actually considering the content of the documents and in particular the redacted material (which only amounted to some 20 lines of text). The Commissioner appears to challenge the Judgment on the basis that it requires a ?jigsaw? exercise and that there was no ?y'oining up? of the redactions with the prejudice effects while also however accepting that this was not ?a particularly complex exercise? if the information was commercially sensitive.18 The latter is of course a central error of law identi?ed by the High Court Judge: if the relevant matters were taken into account, the exercise of identifying the commercial sensitivity of the information was not a dif?cult one, as the information was so clearly commercially sensitive (in light of that relevant material) and was pinpointed in the redacted Finance Contract before the Commissioner. 16 Emphasis added. ?7 ?24. [8 ?63- 64. 112 41. 42. 43. There are several important and unchallenged ?ndings in the Judgment that demonstrate this ease with which the submissions made by UCC, together with the redactions, could have been properly assessed and taken into account: - The existence of this redacted version of the ?nance contract makes it possible to identify with precision the information which it is sought to exempt from disclosure. - More Speci?cally, the court has had the opportunity to carry out a ?compare and contrast? exercise between the redacted version and the full version of the Finance - Crucially, the Information Commissioner?in reaching the impugned decision?also had the bene?t of both the redacted and non-redacted version of the Finance Contract. - Notwithstanding this, the Information Commissioner failed to have proper regard to this material in reaching the impugned decision. - One of the striking features of this case is how little information it is sought to exempt from disclosure. The Finance Contract runs to in excess of ?fty closely-typed pages, yet the redactions run to approximately twenty lines. 10) These (unchallenged) ?ndings by the High Court Judge as to very precise, speci?c, and limited redactions, demonstrate the ease with which the exercise of taking the relevant considerations into account could have been carried out. It was not, in the words of the Commissioner, a ?particularly complex exercise?. But it was simply not undertaken at all. Finally, it is relevant to note that, far from assessing the redactions as part of the exercise being undertaken, the Commissioner states that am not satis?ed that release of the overall terms of the contract would reveal the specific terms applied to each tranche of funds drawn down by 113 44. 45. 46. 47. 48. The focus of the Decision was therefore on a consideration of the ?overall terms of the contract? and there was a marked failure to assess the very speci?c and limited material of which redaction was proposed. In summary, the Decision failed to consider the nature of the redacted data in light of the submission by UCC, and failed to consider the harm to UCC, as distinct from harm to EIB, and thereby failed to take into account relevant considerations. This constituted a material error of law, as so found by the High Court Judge and there is no basis of fact or law in the Notice of Appeal or the Commissioner?s Submissions for disturbing these ?ndings. B. STATUTORY INTERPRETATION Introduction The second ground relied upon by the High Court Judge for setting aside the Decision was that the assessment of the harm to UCC was ?confined? erroneously?to the first of the two limbs of section The High Court Judge found that this was an error of statutory interpretation, as the two limbs of section 36(1)(b) are disjunctive and it was suf?cient for UCC to satisfy one or the other limb.19 The High Court Judge notes that the Decision correctly identi?es that the standard of proof necessary to meet the second limb under section 36(1)(b) is considerably lower, but then ?fails to advert to this distinction in the operative part of the decision.?20 The Judgment states that ?too high a threshold was being imposed.?21 It is submitted that this ?nding in the Judgment is correct as a matter of law and highlights a clear failure by the Commissioner to properly apply the criteria of section 36(1)(b) in their correct interpretation; this failure resulting from a 19 69-70. 20 68. 3? 61. 114 49. 50. 51. 52. misunderstanding or misinterpretation of the correct statutory test, is clearly an error of law and not a matter within the excusable purview of the decision- making discretion of the Commissioner. As set out above and observed by Kearns in Sheedy, ?a legal interpretation of a statute is either correct or incorrect?; it is entirely a matter for the Court and the Commissioner is not entitled to any margin of deference on a question of legal interpretation. The grounds relied upon by the Commissioner in his submissions will be considered in turn below.22 Standard of review The Commissioner makes several submissions related to the standard of review. The only Grounds which appear to engage this question are: Ground 4(a) which is to the effect that the ?ndings that the redacted provisions were self-evidently commercially sensitive ?amounted to a substitution by the High Court of its own assessment for the assessment of the Commissioner's Office, contrary to other case law?; and Ground 10 which includes the assertion that the Judgment ?erred in failing to accord any proper deference or margin of appreciation to the Decision.? Ground 4(a) has already been addressed: the Judgment in fact found that the Commissioner failed to take into account the redacted provisions of the Finance Contract in light of the submissions as to potential competitive prejudice adduced by UCC. The judgment did not substitute an assessment of the redacted provisions of the Finance Contract as manifestly commercially 32 This is subject to the reservation that the Notice of Appeal does not in fact re?ect all of the submissions now made. For example, Grounds 1 and 6 are the main grounds addressing the interpretation of section 36(1)(b) and these grounds do not reference the standard of review. The only potentially relevant Ground appears to be Ground 4(a) which relates to the ?ndings that the redacted provisions were self-evidently commercially sensitive: ?It amounted to a substitution by the High Court of its own assessment for the assessment of the Commissioner's Of?ce, contrary to other case law.? 115 53. 54. 55. 56. sensitive but rather identi?ed what was wholly absent ?om the Decision and the adjudicative process that led to it. As already seen, there is no basis of fact or law for disturbing this ?nding. Insofar as Ground 10 is concerned, there is no difference between the parties as to the appropriate approach. The statement of the applicable principles by McKechnie in Deely The Information Commissioner? (?Deely?) as expanded upon by Kearns in delivering the majority judgment of the Supreme Court in Sheedy The Information Commissioner (?Sheedy?) makes it abundantly clear that . it would obviously be incorrect to apply exclusively judicial review principles to matters of statutory interpretation in the wav that might be appropriate to issues of fact. A legal interpretation of a statute is either correct or ?24 The proposition that there is no deference when it comes to statutory interpretation was indeed accepted by the Commissioner as recorded by Birmingham (delivering the judgment of the Court of Appeal) in Minister for Communications, Energy and Natural Resources v. Information Commissioner25 (?Enet?) 78): behalf of the Commissioner, it is said that no issue is taken with the Minister when he says ?there is no role for deference when it comes to the interpretation of statutes?. This is also con?rmed in the Commissioner?s written submissions in the Appeal to this Court in Enet.26 23 [2001] 3 IR 439. 24 [2005] 2 IR 272, 293-294. Emphasis added. 25 Minister for Communications, Energy and Natural Resources v. Information Commissioner [2019] IECA 68. 26 At ?43. 116 57. 58. 59. 60. 61. In this case, the flaws in the Decision that are identi?ed by the Judgment concern statutory interpretation and the failure to take into account relevant considerations. As such, there is no room for deference to the Commissioner. The formulation of the section 36(1)(b) test The Commissioner makes the submission that documents covered by section 36(1)(b) must ?rst, contain ?information of a particular character? and then, secondly, that disclosure of that information must be capable of giving rise to one of the forms of harm identi?ed (limb one or two).27 The clear words of section 36(1)(b) require only that the information be ?financial, commercial, scientific or technical or other information?. This is the only ?particular character? required by the provision. It is manifestly not a high hurdle (a fact subsequently relied upon by the Commissioner at 60) and is moreover not relevant to this Appeal. The relevant additional requirement contained in the second limb of s36(l)(b) is the very low threshold that disclosure ?could prejudice the competitive position at that person in the conduct of his or her profession or business or otherwise in his or her occupation. 23 (emphasis added) In this regard, the Commissioner makes the surprising submission that the harm or effect of disclosure ?is something that could never properly be 'self?evident' to a court on the mere reading of a record.?29 This proposition is not explained or accepted. Rotunda is one example of a case in which the potential prejudice did not require explanation.30 In any event, it is clear from the terms of the High Court?s Judgment that ?self-evident? is a synonym for ?manifest? viz. the relevant contents of the Finance Contract once read and considered in 27?51. 28 Note that there is no appeal against the statement at {$65 of the Judgment that, ?The threshold applicable to the second limb ?could prejudice is one of the lowest standards prescribed under the 2014.? 29952. 30 See ?246. 117 62. 63. 64. 65. conjunction with submissions on same revealed an obvious and manifest possibility of prejudice to competitive position. While this case concerns commercial sensitivity, the effect of disclosing the cost of capital is something which the High Court Judge was correct to ?nd could self-evidently prejudice the competitive position of a person and no basis has been advanced for suggesting otherwise. The Commissioner relies on Westwood v. Information Commissioner31 (?Westwood?) as authority for the proposition that there must be a speci?c explanation of why the particular documents could prejudice the ?nancial position of the party.32 The salient fact is that, in Westwood, the documents in question were old documents and it is readily apparent why explanation was necessary. This is apparent from the sentence that follows that quoted at 58 of the Commissioner?s submissions: ?In particular, the point properly made by the investigator on behalf of the Respondent as to the antiquity 0f the documents was not dealt with at all by the email 0f2 February from the Notice Party.?33 Westwood does not support the general proposition that there is a requirement in every case that a person who seeks to resist disclosure (whether the F01 Body or another party) must speci?cally explain how it is alleged that each individual sentence could prejudice their competitive position, as asserted by the Commissioner. In Sheedy (on which the Commissioner also relies) the material ?nding follows the passage quoted at 59 of the Commissioner?s Submissions (and underlined below): mere assertion of an expectation of non-co-operation from teaching staff could never constitute su??icient evidence in this regard. particularly 3' Westwood v. Information Commissioner [2015] 1 IR 489. 32 58 of the Submissions. 33 Westwood at 67 per Cross J. 118 66. 67. 68. in the circumstances shown to apply, namely. that as a consequence of both circular no. 12/83 and s. 13 of the Act of1998, there was no choice left to schools or their sta?r as to whether or not to co-operate with the first notice party?s inspectors in terms of furnishing the information sought.?34 The passage relied upon by the Commissioner when set out in and in context demonstrates that the ?mere assertion? referred to there, is an assertion that was undermined by cogent legal reasons to the contrary and is not, it is submitted, capable of being equated with the uncontroverted submissions made by UCC as to potential competitive harm that could be caused by disclosure of speci?c loan terms negotiated with a third party ?nancer to the world at large. It does not support the submission advanced by the Commissioner. Further, neither Sheedy or Westwood (or any other authority cited in the Commissioner?s submissions) substantiate the apparent argument that ?cogent explanations are required?35 to satisfy section The only justi?cation advanced for this proposition as to the proper interpretation of section 36(1)(b) is the ?open-textured category of ?other information that can come Within section With respect, this is an attempt to raise the threshold imposed under the second limb of in an explicit manner which is at odds with the clear words of the second limb of s36(1)(b); the stark contrast between those words and the language of other provisions of FOIA which are more onerous and require explanations (such as which only exempts records concerning functions and negotiations of public bodies where disclosure ?could reasonably be expected? to ?have a significant, adverse e?ect" on management functions of an FOI body); 3? 78 of the Judgment. 35 60 of the Submissions. 36 ?60 of the Submissions. 119 69. 70. 71. the clear statements of authority as to the low threshold imposed by the second limb of and the Commissioner?s acceptance of the ?ndings in the Judgment as to the very low threshold imposed by the second limb of The contention now being made by the Commissioner that ?cogent explanations? are required to satisfy the second limb of s36(1)(b) is not consistent with these unassailable propositions. In this case, the Commissioner did not consider the nature of the information sought to be redacted to assess its commercial sensitivity, in light of the submissions made. Instead, the Commissioner appears to have proceeded on the basis that, unless the speci?c effect of each redaction was explained by each person alleged to suffer the risk of potential harm, there could be no potential prejudice. Of course, the Commissioner then also failed to consider the explanations of prejudice provided by UCC (as already addressed). Criticisms of the statutory interpretation in the Judgment As already seen, the Commissioner in the Court of Appeal in Enet and in the written submissions now made in Enetz?8 expressly accepted that there is no scope for deference in relation to matters of statutory interpretation.39 There is either an error of law or not: see Sheedy What is contended by the Commissioner appears to be that the Judgment is wrong in ?nding that the Decision did not properly interpret and apply for the following reasons: 37 See for example Westwood, in which Cross found that the categorisation of the stande of proof as ?very low? was not erroneous: ?Very Iow? may be a term of art about which one could argue but i do not find that the use of this term to be an error of iaw and indeed in layman terms it fairly describes the nature of what must be provedthe Commissioner?s submissions to this Court in Enet. 39 This speci?c point does not appear to be addressed by the Commissioner in the Submissions in this case, but the same acceptance must hold good for both. 120 72. 73. 74. 75. First, it is asserted that this is inconsistent with the text of the Decision (without elaboration).40 Second, it is asserted that this is ?not a matter of statutory interpretation at all? because the Decision refers to both limbs of section it is submitted that this proposition is untenable, as the correct identi?cation of the words of a statute cannot be equated with the correct interpretation of those words through their application to a set of facts; how the statutory provision was applied shows how it was understood and therefore interpreted. Otherwise, errors of interpretation could never be found provided the words of a statute are correctly identi?ed, however they are applied. Third, the Commissioner submits that what the Judgment is actually criticising is ?a perceived de?ciency in the reasons given in the Decision.?42 This position is untenable; a ?nding that there was an error in statutory interpretation cannot be challenged on the basis that the error was in how the reasons were given or expressed; rather than what was meant to be said (as appears to now be contended). The ?nding at ?68 of the Judgment that there is a failure to advert to the second limb of section 36(l)(b) in the operative part of the Decision is not a mere textual complaint (as suggested by the Commissioner). On the contrary, the Judgment goes on in the following paragraph to con?rm that, ?Such reference as is made to UCC is con?ned?erroneously?to the ?rst of the two limbs of section 36(1 Thus, for example, it is stated that UCC has not pointed to any specific information contained in the records at issue which, if disclosed, could reasonably be expected to give rise to material ?nancial loss.? 40 gm. 41 ?72, 42 73 to 78. 121 76. 77. It is not a failure to give reasons or the nature of the reasons that is found to constitute the error of law, but the failure to properly or at all apply the second limb of section properly construed. Insofar as the Commissioner relies on authorities in relation to the scope of the duty to give reasons, same are simply inapplicable here. This is moreover not a ground of appeal that was relied upon in the Notice of Appeal. 122 C. THE PRESUMPTION ISSUE One of the grounds for the Judgment was that the Decision ?mistakenly takes as its starting point a presumption in favour of disclosure which required UCC to 43 This is based on the judgment of Macken J. in the Rotunda Hospital case? that this presumption in section 22(12)(b) did not apply to mandatory exemptions. ?the rationale of this judgment is that once a record comes within a mandatory exemption, then there is no additional requirement to justify the decision to refuse disclosure. 0n the facts of the present case, counsel for UCC submitted that this rationale applies equally to a record which falls within the exemption under section 36(1 ?45 he essence of the Rotunda Hospital case, now confirmed by the Court of Appeal in ENET, is that where a record comes within the terms of one of the statutory exemptions, then no additional justification for non- disclosure is required to be demonstrated. (T his is subject to the separate statutory consideration of the public interest)?46 It is clear from the Judgment that the error identi?ed in the decision of the Commissioner was the imposition of a requirement that UCC ?demonstrate some additional justification for non-disclosure? of records, which were ?self- 47 78. justify the refusal of access . 79. 80. The High Court Judge states, 81. This is repeated later: 82. evidently commercially sensitive . 43 ?3 ?4 Rotunda Hospital case Governors and Guardians of the Hospital for the Relief of Poor Lying?[n Women v. Information Commissioner [2013] 1 IR 1 (Note that FOIA 1997, section 34(12)(b) was in broadly similar tenns to section of the 2014 Act). ?5 ?50. Emphasis added. ?5 ?58. Emphasis added. ?7 ?6l. 123 83. 84. 85. 86. It was the imposition of this additional requirement to justify the decision not to disclose a record which was found by the High Court Judge to constitute an error of statutory interpretation. This is also consistent with the judgment of the Court of Appeal in Enet in which the Court recounts that the Minister clearly challenged the requirement of something additional and exceptional other than the record in question being an exempt record: . .the Minister says that in a situation where the Commissioner accepted that enet's competitive position could be prejudiced in the event of disclosure and that, accordingly, the record sought was commercially sensitive, that the Commissioner erred by requiring that exceptional circumstances needed to be established if the need for transparency was to be overridden (per Birmingham at 27). (emphasis added) There is no ?nding by the High Court Judge in this case or by the Court of Appeal in Enet, it is submitted, that there is a presumption that a particular record is or is not commercially sensitive. Whether the criteria of section 36(1)(b) (or any of the exempt records provisions) are satis?ed, is a separate matter, as addressed in a different section of these Submissions. What these judgments instead demonstrate is that, once a record is shown to be commercially sensitive, then no further justi?cation for non-disclosure is required as section 22(12)(b) does not apply to such an exempt record. Indeed, the fact that the characterisation of the documents as commercially sensitive in Enet was not in dispute, demonstrates that the issue was not the proof of that fact, but rather the burden imposed on the Minister to prove some additional exceptional matter.48 ?3 See 44 of the judgment of Birmingham P: ?In summary, am of the view that the Commissioner erred when he approached the case on the basis that records exempt by statute were presumed to require disclosure. Insofar as it is not in dispute that the document sought is commercially sensitive, and as much is expressly acknowledged by the Commissioner, I am of the view that he erred in looking for exceptional circumstances if the exemption was not to be overridden.? (emphasis added) 124 87. 88. 89. 90. It is submitted that this is obscured in the submissions of the Commissioner49when he states that: ?the Commissioner disputes that the Decision demanded any ?additional justification beyond UCC being asked to justify that the record did in fact 'come within s. The proposition advanced by the Commissioner that nothing extra was required is not among the Grounds of Appeal and is clearly in contradiction of the (unchallenged) ?nding in the Judgment50 that: ?Notwithstanding that the nature of the redacted information was self- evidently commercially sensitive, the Information Commissioner appears to have expected UCC to demonstrate some additional justification for non-disclosure.? The High Court Judge therefore determined that the interpretation of section 36(l)(b) by the Commissioner imposed a dual requirement on UCC: - First, to satisfy the criteria of section 36(1)(b) (a requirement imposed, as it happens and as addressed separately in these submissions, to an excessively high threshold); and - Secondly, to also satisfy the Commissioner that there was some additional justi?cation for non-disclosure. It is submitted that, in the written submissions of the Commissioner in the Enet case or in this case, this critical fact is not addressed. On the contrary, it is submitted that the submissions of the Commissioner fall into error in the analysis of the judgment under appeal. This is manifest from the emphasis in the Enet Submissions on the proposition that whether a record is exempt or not is tied to and dependent on a process of adjudication? and the repeated concern 49 ?39 (second bullet). so At ?6l. 51 See 29 and 30 for example. 125 that, if a refusal based on an exemption does not require justi?cation the primary objectives of the FOIA are frustrated.52 91. The position that is actually re?ected in the Judgment and in the judgment in Enet, it is submitted, is not that a decision to categorise a record as exempt is unassailable or requires no explanation, but rather that is not a basis for imposing a more exacting obligation than the low threshold of for example, and/or is not a basis for imposing an additional requirement to justify refusing disclosure of an exempt record. 92. This view of the Judgment and the judgment in ENet, is also, it is submitted, entirely reconcilable with the Commissioner?s View that the status of records as exempt records may be determined in an adjudicative process itself.53 53 See 29. 53 {$32 of the Submissions in Enet. 126 93. 94. 95. 96. 97. D. ALLEGED NEW POINTS A considerable proportion of the Commissioner?s submissions are dedicated to the question of what was and was not raised before the Commissioner made the Decision. These are dealt with together in this section. Before addressing speci?c grounds relied upon by the Commissioner, it is accepted that, as a general principle, any appeal must be limited to points previously made to the Commissioner.54 However, UCC rejects the suggestion that the appeal (or the Judgment) relied upon points not made to the Commissioner;55 UCC impugned the Decision on appeal by reference to points that arose from the Records, Submissions and the Submissions and which were squarely and ?illy before the Commissioner when the Decision was reached. Submissions about alleged new factual material (Ground 3) The primary complaint as a factual matter appears to concern the redacted Finance Contract. While Initial Decision and Review Decision did not pmpose these redactions, the redacted Finance Contract was indisputably before the Commissioner when making the Decision (and is referred to therein). 5? The Governors and Guardians of the Hospital for the Relief of Poor Lying-In Women Information Commissioner [2013] 1 IR 1, (Fennelly J) ?90; McKillen Information Commissioner {2016] IEHC 27, ?59. For the avoidance of doubt, UCC suggests that there is a distinction between seeking to make an entirely new point on appeal (which is generally impermissible) and elaborating on/developing a point previously identi?ed (which is unobjectionable). 55 Second Collins Af?davit, ?10; Third Collins Af?davit, 14. 127 98. 99. 100. 101. 102. 103. Moreover, it is important that the High Court Judge accepted as ?well made? the arguments of UCC that ?it is clear from a reading of the submission made by the E13 on 27 November 2017 that the approach of redacting the ?nance contract was one agreed with?and implicitly endorsed?by UCC It is important that this ?nding has not been appealed. The Commissioner?s objections to the redacted Finance Contract being considered in the Judgment56 appear to be based primarily on the fact that the redacted Finance Contract was in fact sent to the Commissioner by EIB and not by UCC. The Commissioner submits that cannot be viewed as having done anything other than ?holding back? the very redactions on which it later sought to rely? This, it is submitted, is irreconcilable with the (unchallenged) ?nding by the High Court Judge that it was clear from the EIB submission that the approach of proposing the redactions was one agreed with UCC. It is also surprising that the Commissioner submits that the Judgment ?holds that the Commissioner was obliged to decide in favour of UCC on the basis of a case which UCC did not make.?57 There are three issues with this proposition. First, this suggests that because it was EIB and not UCC which sent the redacted Finance Contract to the Commissioner, the Commissioner was not obliged to consider it as a basis for deciding ?in favour of This proposition is a surprising one and is completely at odds with the process as outlined by the Commissioner in written submissions to the High Court; that process is not an inter partes one between the Commissioner and the F01 Body but rather a more inquisitorial process that can involve gathering information and submission from various interested parties. 56 At? 57 ?67. 30. 128 104. The Commissioner relied in written submissions to the High Court on International Fishing Vessels v. Minister for the Marine W0 2)58and on the statement of McCarthy at page 103 that, provided there are valid reasons for the decision under review based on matters which were noti?ed to the parties and on which they had an opportunity to make representations, ?the fact that there are other reasons of which he has not given them notice, does not, in my view, invalidate his decisions.?59 105. The Commissioner in invoking these authorities before the High Court has defended the right to take into account in making a decision all matters that are considered to be relevant, Whether or not noti?ed to the F01 Body or any other party. It is dif?cult to see how this is consistent with an assertion that the Commissioner was not obliged to consider material if it was not sent directly by all the more so when the material was sought out by the Commissioner (as happened with the EIB here). 106. Second, it is also dif?cult to reconcile with the Commissioner?s own submission that he ?took full account of all submissions made?.60 107. Third, it overlooks the highly material fact that UCC did make detailed submissions as to the potential harm to its competitive position arising from such matters as disclosure of its cost of capital. The making of this submission by the Commissioner now compounds the failure of the Commissioner to take these submissions by UCC into account in the Decision (as addressed in Section A above). As is clear from the Judgment the issue should not be who made a particular ?case? but what submissions and material were before the Commissioner and properly taken into account (or not) in the Decision. 108. Another submission that seems to rely wholly on the fact that the EIB, having consulted with UCC (rather than UCC), sent the redacted Finance Contract to 58 International Fishing Vessels v. Minister for the Marine (N0 2) [1991] 2 IR 93. 59 The applicability of this authority to the Commissioner?s decision-making is not part of this Appeal but is, for the avoidance of doubt, not accepted by UCC. ?0 ?62 Written Submissions. 129 109. 110. 111. 112. 113. the Commissioner, is the submission that the duty to give reasons under section 13(2)(d) FOIA ?clearly cannot be discharged for UCC by With respect, this con?ates two very different things: duty to give reasons for the Initial Decision (which is addressed in section 13(2)(d) FOIA and which is irrelevant to this Appeal) and the material that was in fact before the Commissioner when the Commissioner was making the Decision. It is also irreconcilable with the Commissioner?s submissions (outlined above) that the Commissioner is entitled to have regard to all material before him when making a decision (even, apparently, material not disclosed to the parties). In summary, before the High Court, the Commissioner emphasised the sui generis, informal nature of the process he follows to justify not disclosing all material received and relied upon to all parties. He now seeks to preclude UCC and the High Court from considering the relevance of the redacted Finance Contract (to which he did refer in the Decision), on the highly formalistic technical ground that the email attaching the redacted document was sent by an interested party other than UCC (albeit stating that it was based on consultation with UCC). This position is, it is submitted, untenable. Points of law The Commissioner appears to attempt to raise an estoppel against UCC with regard to It is not accepted that any such estoppel arises. A misconstruction of FOIA would be ultra vires the Commissioner and it is well- established that estoppel cannot operate to permit an ultra vires action.62 Further, no Ground of Appeal has been raised related to such an estoppel. Moreover, this argument appears to relate primarily to the question about the application of the presumption under s. 22(12)(b). As found in ENet, that 6' ?30. ?32 See, Wiley Revenue Commissioners [1994] 2 IR 160. 130 presumption was clearly part of the Decision and there is no question of a new point of law being agitated now on appeal that was not raised or part of the Decision under challenge. This case can be clearly contrasted with what occurred in Rotunda, for example, where an argument that the records in question pre?dated the OIA was raised for the ?rst time in the appeal. 114. It is also important to note that there are different types of ?points of law?, as highlighted by Clarke in judgment of the Supreme Court in itzgibbon v. Law Society? at paragraph [128] as follows. ?In one sense it may be said that two types of points of law can legitimately be raised in an appeal which is limited to points of law alone. First, there may be an error of law in the determination of the ?rst instance body. Second, it may be the case that the way in which the ?rst instance body has reached its conclusions on the facts involves an error which itself amounts to an error in law. There may have been no evidence to support a ?nding or inferences may have been drawn on the facts which no reasonable decisionmaker could have drawn.? 115. It is clear that a point of law that emerges from the Decision itself (as opposed to a point of law that was not part of or re?ected in the Decision) cannot be immune from challenge, in the manner contended for by the Commissioner. 63 Fitzgibbon v. Law Society [2014] IESC 48; [2015] 1 IR. 516 131 116. 117. 118. 119. 120. E. OTHER MATTERS (21) Interest rate The ninth Ground of Appeal challenges the ?nding that the Decision was ?too technical? in its treatment of the issue of the interest rate. What the Judgment actually referred to was not just that the Decision was too technical but that the Decision emphasises that the speci?c interest rates to be applied to each drawdown were not set until the relevant drawdown dates and that, for this reason, the Commissioner was not satis?ed that release of the ?overall terms? would reveal the ?specific terms applied to each tranche of funds drawn down by Accordingly, the only apparent basis for dismissing the commercial sensitivity of provisions of the Finance Contract which disclose such matters as the ?xed and variable interest rates agreed to by UCC, was that the agreement as a whole did not disclose the terms applied to each draw down. This was the only consideration given to the commercial sensitivity of the disclosure of the terms of the Finance Contract. The High Court Judge identi?es the technicality of this point in the Decision but then signi?cantly continues at ?75: he key point, of course, is that the margin for the ?oating/variable interest rate is referenced in the ?nance contract. Moreover, if UCC chose to drawdown all the funds on a ?oating/variable basis?rather than on a ?xed basis?this would mean that the actual interest rate would be disclosed. Alternatively, if UCC did not opt for the variable rate, then the interest rate would become known at the time of the drawdown.? 132 121. The High Court Judge correctly assessed the impact of disclosure on UCC. Even if the ?specific terms applied to each tranche of funds drawn down? was not revealed by the Finance Contract, this did not answer the fact that disclosure of the margin and the ?xed and variable rates to which UCC agreed and committed was a matter of commercial sensitivity and would be disclosed in the Finance Contract and the speci?c rates could be known at the date of draw down. (Contrary to the assertions by the Commissioner, there was no change in the position adopted by UCC on this point at any stage.) 122. Against the foregoing background, the key ?nding by the High Court Judge in this respect is at ?76z ?The fundamental error committed by the Information Commissioner is that he failed to have regard to the impact or adverse effect on UCC, as opposed to the 123. The Judgment does not review the treatment of the issue of the interest rates in the Decision, to determine it was ?overly technical? as an end in itself, as suggested in the Commissioner?s submissions.64 Rather, it is clear from the Judgment that the technicality of the Decision?s approach demonstrates the failure to take into account the actual impact on UCC of disclosure of the margins and rates themselves and provisions related to the interest rates. 124. In short, the issue of commercial sensitivity ranged far wider that the proposition that the actual terms applied to each speci?c tranche would be disclosed such as could harm but, wrongly, this was the only issue addressed in the Decision. 125. As addressed earlier in these Submissions, UCC did make detailed submissions about the harm that could be inflicted on it and its competitive position as a result of disclosure of the Records. The assessment of harm to UCC, in the context of disclosure of interest rate margins or otherwise, is simply absent from the Decision. 64 99 of the Submissions. 133 126. The High Court Judge correctly identi?ed this as a material error of law. Records 2-4 127. As found by the Judgment65 and not disputed in this Appeal, Records 2-4 are internal UCC documents that ?all relate to the (then) proposed ?nance contract with the In particular, Records 2??4 set out detail of existing borrowings and repayment levels, the commercial details on EIB borrowings, together with details of planned future forecast ?nancial details for the term of the EIB borrowing, inclusive of all existing debt and planned future matching EIB debt. They also include all income including non~exchequer, expenditure, balance sheet and cash ?ow. All of this information is forecast to 2038.6?5 128. Insofar as the Commissioner in the Notice of Appeal and the Submissions challenges the Judgment with regard to Records 2-4, the only ground advanced appears to be that the Commissioner did consider harm under both limbs of and that the Decision was made within jurisdiction. It is submitted that these Submissions are unfounded and that Judgment correctly identi?ed that the Decision failed to properly take into account the potential harm to competitive position, and failed to properly apply the low threshold mandated under errors of law without jurisdiction. 129. In particular, it is clear, as found in the Judgment, that Records 2-4 derive from and relate to the Finance Contract and the same errors of law identi?ed in the Judgment apply equally to the Decision with regard to each of the 4 records. Furthermore, in his assessment of Records 2-4, as with the Finance Contract, the Commissioner failed to have regard to the potential harm to competitive position. 55 ?18 of the Judgment. 56 See ?18 of the Judgment. 134 CONCLUSION 130. For the reasons set out above, which will be elaborated upon in oral submissions, UCC respectfully submits that the decision of the High Court should be upheld. NESSA CAHILL CIAN FERRITER 27th SEPTEMBER 2019 135