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Minister for Communications, Energy and Natural Resources

This judgment was given by the High Court on an appeal by the Minister for Communications, Energy and Natural Resources against the Commissioner's decision in Case Number 150062 - Mr Gavin Sheridan and the Department of Communications, Energy and Natural Resources.

Note: The judgement on this appeal was given by Mr. Justice Noonan on 6 April 2015 and a copy of his judgement is reproduced below.

THE HIGH COURT

[2015 No. 394 MCA]

IN THE MATTER OF THE FREEDOM OF INFORMATION ACT 2014
BETWEEN THE MINISTER FOR COMMUNCIATIONS,
ENERGY AND NATURAL RESOURCES

APPELLANT

AND

THE INFORMATION COMMISSIONER

RESPONDENT

AND

GAVIN SHERIDAN

FIRST NOTICE PARTY

AND

E-NASC EIREANN TEORANTA (TRADING AS "ENET")

SECOND NOTICE PARTY

JUDGMENT of Mr. Justice Noonan delivered on the 6th day of April, 2017

1. This matter comes before the court by way of appeal on a point of law pursuant to s.
24(1) of the Freedom of Information Act 2014 ("the 2014 Act"). The appellant ("the
Minister") brings the appeal against a decision of the respondent ("the Commissioner")
dated 30th November, 2015. The first notice party ("Mr. Sheridan") was the original
requester of the information the subject matter of this appeal, which information
concerned the second notice party ("enet"). enet did not participate in this appeal other
than by way of submitting an affidavit which was filed by the Minister on his own behalf.

Background Facts

2. The State is the owner of an infrastructure of fibre optic cables in towns and cities
throughout the country which are known as "metropolitan area networks" (MANs). The
MANs enable telecoms operators who do not possess their own infrastructure to utilise
the MANs to provide services such as telephone and broadband to their customers.
Such operators access the MANs on commercial terms. Following a tendering process
instigated by the Minister, enet was awarded a concession with the State to maintain,
manage and operate the MANs. The terms of this concession are embodied in a written
agreement entered into in 2009 between the Minister and enet. On foot of this
agreement, enet operates as a wholesaler of access to the MANs selling services to
retail telecoms operators. The MANs constitute an important State owned asset.
3. On 2nd January, 2015, Mr. Sheridan made a Freedom of Information request to the
Minister for access to four categories of records. The fourth record is the concession
agreement. No issue arises any longer in relation to the first three records so this
appeal is concerned solely with the concession agreement.
4. On the 14th January, 2015, the Minister wrote to enet to advise it of Mr. Sheridan's
request. The letter noted that s. 38 of the 2014 Act required the Minister to consult with
enet as a third party to whom the record sought related. The Minister said that the
records were being considered in accordance with ss. 35 and 36 concerning confidential
information and commercially sensitive information respectively and noted that both
sections required the undertaking of a public interest test to determine if the records
should be released. The letter went on to say:

"My preliminary view in this matter is that the public interest would on balance be
better served by granting the requester the information rather than refusing it unless
there are objective reasons to the contrary."

5. enet replied on 3rd February, 2015. It submitted that the records should not be
released on the grounds that they were commercially sensitive and the public interest
did not favour release. The letter made a legal submission in the context of previous
decisions of the Commissioner. However, the letter provided no specific information as
to how the concession agreement ought to be regarded as commercially sensitive. It
stated that release of the agreement might provide an incomplete picture of the
relationship between the Minister and enet.
6. The Minister communicated his decision to Mr. Sheridan by letter of 16th February,
2015. The letter cited both ss. 35 and 36. It noted that a duty of confidence exists
between the parties to the concession agreement being the Minister and enet. Release
of the agreement would be a breach of this duty of confidence. The letter makes no
reference to the requirement to consider the public interest under s. 35(3) or whether
s. 35(1) applied at all having regard to the terms of s. 35(2) to which I will refer
further.
7. Having cited s. 36, the Minister's letter went on to state:

"enet has an obligation to manage, moreover, maintain and operate the MANs on behalf
of the State. The release of the concession agreements and any matters pertained to
these agreements could have a negative impact on the ability of enet to continue the
business of managing the MANs on behalf of the State in a competitive environment
and could result in a material financial loss to the company."

8. That appears to be the extent of the Minister's consideration of the commercial
sensitivity of the concession agreement in issue. Of note, the Minister's decision makes
no reference of any kind to the requirement to consider the public interest under both
ss. 35 and 36. This is in contrast to the Minister's preliminary decision that the public
interest required the disclosure of the information. No reason is given for departing
from that preliminary view.
9. Mr. Sheridan appealed this decision to the Commissioner. On 12th May, 2015, the
Commissioner wrote to the Minister asking for submissions in relation to the matter. In
the course of that letter, the Commissioner said:

"It is important to note that s. 22(12) (b) of the Freedom of Information Act places the
onus on the public body of satisfying the Commissioner that its decision to refuse to
grant a request was justified. Therefore, failure to justify a claim for exemption may
lead to a decision by a Commissioner to release the records at issue."

The Minister replied on 26th May, 2015, and in the course of an email of that date said:

"In effect, this will amount to penalising the company for transacting business with the
State. It could also act as a disincentive to any future potential bidders for the MSC
contracts, i.e. knowing that all of their commercial dealing is liable to end up in the
public domain.
The release of the contract details would also undermine the State's ability to negotiate
similar types of contract in the future and could undermine the State's negotiation
future tender process."

10. On 28th July, 2015, the Commissioner wrote by email to the Minister seeking
clarification of how the release of the records would harm enet's commercial position.
The Minister replied on 30th July, 2015, saying:

"If enet's commercial details were to be published, it would place them at a
disadvantage with both their customers and competitors - i.e. both would know enet's
costs and prices. The disclosure of this information would undermine enet's business."

11. On 24th August, 2015, enet made further submissions to the Commissioner
attaching the agreement and highlighting the areas that they viewed as being the most
commercially sensitive and which they argued should be rejected. The email continued:

"I would reiterate that we would still see the entire contract as commercially sensitive
and had previously understood that it would remain confidential as intended under the
confidentiality clause contained within the agreement. As outlined previously, the
disclosure of commercially sensitive information could impact our business adversely
from a number perspectives and could result in financial loss to the company.
enet operates in the wholesale market, which is very competitive and our competitors
are operators such as Eircom and BT offer similar services to enet (over the networks
that they own). Any commercially sensitive information that is disclosed which pertains
to enet's business model could result in our competitors being better positioned to
compete against enet and could also result in our customers requesting price reductions
thereby adversely impacting in its ability to earn a commercial return."

12. The Commissioner made his decision on 27th November, 2015, and it was
communicated to the Minister on 30th November, 2015.

The Commissioner's Decision

13. In dealing with preliminary matters, the Commissioner said:
"Before I consider the exemptions claimed, I wish to make four general points. First, s.
22 (12) (b) of the FOI Act provides that when I review a decision to refuse a request,
there is a presumption that the refusal is not justified unless the public body 'shows to
the satisfaction of the Commissioner that the decision was justified'. Therefore, in this
case, the onus is on the Department to satisfy me that its decision is justified ..."
14. This statement is one to which the Minister has taken exception in this appeal for
reasons which I will explain further.
15. In dealing with the scope of the review, the Commissioner noted that Mr. Sheridan
had agreed to exclude schedule 3 to the Commission agreement from the review so
that it did not arise for consideration.
16. Dealing with s. 36, the Commissioner said:

"Having considered these submissions and having examined the record at issue, I am
not satisfied that the first limb of s. 36(1) (b) applies. The parties have not
demonstrated to my satisfaction that there is a 'reasonable expectation' of 'material
loss' accruing to the third party."

17. In respect of the second limb of s. 36(1) (b) the Commissioner found that it did
apply i.e. that enet's competitive position could be prejudiced, and accordingly that it
was necessary to consider the public interest under s. 36 (3). In this regard, the
Commissioner said:

"Having found that s. 36 (1) (b) applies, s. 36(3) of the FOI Act requires me to consider
whether, on balance, the public interest would be better served by granting them by
refusing the request. I take the approach that in considering the public interest in cases
of this kind, I must consider the interests of each party. The FOI Act itself recognises
the public interest in ensuring the openness and accountability of public bodies as to
how they conduct their business. I take the view that there is a public interest in the
proper administration of public contracts and in ensuring that value for money is
obtained. I consider that openness about the expenditure of public funds is a significant
aid in ensuring the effective oversight of public expenditure and that the public obtains
value for money, and in preventing fraud and corruption and the waste or misuse of
public funds. This public interest is not limited to the expenditure of public funds; I also
recognise that there is a public interest in transparency and accountability in the use of
public property and public assets.
Set against that, s. 36 (1) itself reflects the public interest in protecting commercially
sensitive information. There is a legitimate public interest in entities being able to
conduct commercial transactions with public bodies without suffering commercially as a
result. As my predecessor observed in cases 98114, 98312, 98164 and 98183 (Eircom
plc & Department of Agriculture and Food & Ors.), the public interest in openness about
the expenditure of public funds is not absolute; for example where the effect of
disclosure would be to totally undermine the business of the company and thereby
deter public bodies from transacting business with the State.
The MANs are a valuable State asset. In my view, it is in the public interest
to disclose the terms and conditions under which enet has agreed to
manage, maintain and operate this valuable State asset."

18. The Commissioner went on to refer to earlier decisions of his predecessors including
McKeever Rowan Solicitors and the Department of Finance (Case 99183) and noted that
in that case, the Commissioner had stated:

"He also stated that the public body in that case 'could not reasonably be expected to
keep that information or any of the other contract terms confidential in the absence of
exceptional circumstances.' "

The Commissioner continued:

"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.
In the first place, I do not accept that the 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. Indeed, as the
former Commissioner observed in Case 98049 cited above, there would
appear to be a contradiction between the arguments that on the one hand,
competitors will use the information in future tenders, and yet on the other
hand, competitors will be deterred from entering into future tenders.
Secondly, in any event, I do not accept that the information contained in
the records would automatically benefit future tenderers. This contract
relates to one particular phase of the MANs; it does not follow that the
State's requirements for any future phase will be exactly the same.
Moreover, I note that the current prices in respect of part of the services
are on enet's website.
Thirdly, neither the Department nor enet has demonstrated to me that
releasing the contract would 'totally undermine' enet's business (see Case
No. 98114 above). Finally, I agree with the findings of the former
Commissioner in Case No. 98114 that the possibility of information being
misunderstood is not a good reason to refuse access to records. It would be
open to the Department and/or enet to put further information in the public
domain, if that were necessary to clarify enet's contractual relationship with
the State or any other aspects of enet's operations.
Furthermore, I am mindful that s. 11(3) of the FOI Act requires public
bodies to have regard to the need to achieve greater openness and 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 true public interest recognised by means of a
well known and established policy, adopted by the Oireachtas, or by law' as
referred to by Macken J. in Rotunda Hospital v. the Information
Commissioner [2011] IESC 26.
Having regard to the above, I find that, on balance, the public interest
would be better served by the release of the fourth record."

19. With regard to s. 35, which deals with confidential information, the Commissioner
was of the view that s. 35(2) which disapplies the confidentiality exemption in the case
of agreements between public bodies and service providers, was applicable in this case.
However, he went on to consider that in any event, s. 35(1) did not apply for the
reasons he set out.

The 2014 Act

20. The following provisions of the 2014 Act are material to this appeal. Part 4 of the
Act comprises ss. 28 - 41 inclusive and is entitled "exempt records". S. 2 is the
interpretation section which defines inter alia, "exempt records" as meaning:

"(a) a record in relation to which the grant of an FOI request would be refused
pursuant to Part 4 or by virtue of Part 5 ..."

Section 11 is entitled "access to records" and provides, insofar as relevant
here:

"(1) Subject to this Act, every person has a right to and shall, on request
therefor, be offered access to any record held by an FOI body and the right so
conferred is referred to in this Act as the right of access...
(3) An FOI body, in performing any function under this Act, shall have regard
to --
(a) the need to achieve greater openness in the activities of FOI bodies and to promote
adherence by them to the principle of transparency in government and public affairs,
(b) the need to strengthen the accountability and improve the quality of decisionmaking
of FOI bodies, and
(c) the need to inform scrutiny, discussion, comment and review by the public of the
activities of FOI bodies and facilitate more effective participation by the public in
consultations relating to the role, responsibilities and performance of FOI bodies...
(7) Nothing in this section shall be construed as applying the right of access to an
exempt record --
(a) where the exemption is mandatory, or
(b) where the exemption operates by virtue of the exercise of a discretion that requires
the weighing of the public interest, if the factors in favour of refusal outweigh those in
favour of release."

21. Section 22 provides for review by the Commissioner of decisions of Freedom of
Information bodies such as the Minister and at subs. (12) provides:

"(12) In a review under this section --
...
(b) a decision to refuse to grant an FOI request shall be presumed not to
have been justified unless the head concerned shows to the satisfaction of
the Commissioner that the decision was justified."

22. Section 35, entitled "information obtained in confidence" replaces s. 26 of the
Freedom of Information Act 1997 and provides as follows:

"35.(1) Subject to this section, a head shall refuse to grant an FOI request if --
(a) the record concerned contains information given to an FOI body, in confidence and
on the understanding that it would be treated by it as confidential (including such
information as aforesaid that a person was required by law, or could have been required
by the body pursuant to law, to give to the body) and, in the opinion of the head, its
disclosure would be likely to prejudice the giving to the body of further similar
information from the same person or other persons and it is of importance to the body
that such further similar information as aforesaid should continue to be given to the
body, or
(b) disclosure of the information concerned would constitute a breach of a duty of
confidence provided for by a provision of an agreement or enactment (other than a
provision specified in column (3) in Part 1 or 2 of Schedule 3 of an enactment specified
in that Schedule) or otherwise by law.
(2) Subsection (1) shall not apply to a record which is prepared by a head
or any other person (being a director, or member of the staff of, an FOI
body or a service provider) in the course of the performance of his or her
functions unless disclosure of the information concerned would constitute a
breach of a duty of confidence that is provided for by an agreement or
statute or otherwise by law and is owed to a person other than an FOI body
or head or a director, or member of the staff of, an FOI body or of such a
service provider.
(3) Subject to section 38 , subsection (1)(a) shall not apply in relation to a
case in which, in the opinion of the head concerned, the public interest
would, on balance, be better served by granting than by refusing to grant
the FOI request concerned. ..."

23. Section 36 is entitled "commercially sensitive information" and provides as follows:

36. (1) Subject to subsection (2), a head shall refuse to grant an FOI
request if the record concerned contains --
...
(b) financial, commercial, scientific or technical or other information whose
disclosure could reasonably be expected to result in a material financial loss
or gain to the person to whom the information relates, or could prejudice
the competitive position of that person in the conduct of his or her
profession or business or otherwise in his or her occupation, or
...
(3) Subject to section 38, subsection (1) does not apply in relation to a case
in which, in the opinion of the head concerned, the public interest would, on
balance, be better served by granting than by refusing to grant the FOI
request..."

24. Where the public interest override provision in ss. 35 or 36 apply, s. 38 requires the
head to notify the person to whom the requested information relates of the request and
allow that person to make submissions before deciding to grant a refusal request.

The Arguments

25. Although a very large number of grounds were originally raised by the Minister in
his grounding affidavit, as the case proceeded, these essentially distilled down to the
following core propositions:
(a) The Commissioner was in error in considering that the presumption
under s. 22(12) (b) applied to records which are exempt under the 2014
Act. The sole basis for this contention is a passage from the judgment of
Macken J. in Rotunda Hospital v. Information Commissioner [2013] 1 I.R. 1
to which I will refer in more detail.
(b) In applying the public interest tests under both ss. 35 and 36, the
Commissioner fell into error in applying a standard not provided for by the
express words of the Statute. Thus the application of an "exceptional
circumstances" test was neither lawful nor appropriate. The fact that the
Commissioner followed earlier decisions of his office in that respect is
immaterial. In deciding that the 2014 Act requires transparency in relation
to State Bodies, the Commissioner effectively ignored the exemptions
created by Part 4 which prima facie exempts records from disclosure. This
was to reverse what the statute actually required. The Commissioner
further fell into error in applying a standard that required the Minister to
demonstrate that the release of the contract would "totally undermine"
enet's business. This was not a test provided for in the Act and for the same
reasons as applying an "exceptional circumstances" test was ultra vires the
Commissioner. It was further submitted that the balancing test required to
be performed by the Commissioner was erroneously carried out. The
Minister had applied the test correctly and concluded that the public interest
favoured non disclosure.
26. The Minister further submitted that the Commissioner was in error in considering
that s. 35 (2) applied to the facts of this case. The Minister submitted that s. 35 (2)
applies to a record prepared by the head (or other person acting as agent such as a
service provider) in the course of performance of his or her functions qua head. In this
instance, enet was such a third party, not a service provider performing the functions of
a head; and it did not negotiate an agreement on behalf of the head with itself.
27. Both the Commissioner and Mr. Sheridan submitted that the Commissioner was
correct in concluding that s. 22 (12) (b) applied to exempt information as it applied to
all other information. They contended that insofar as the views expressed by Macken J.
in Rotunda Hospital suggested to the contrary, those views where obiter, were
contradicted by other dicta which were not obiter and in any event were expressed
before the passage of the 2014 Act which, despite the expression of those views,
repeated verbatim the wording of the 1997 Act.
28. They submitted that s. 35 (2) was clear in its terms and applied in this case with
the effect that s. 35 (1) was not relevant. They contended that the Minister was in any
event precluded from relying on any argument at s. 22 (12) (b) did not apply as this
argument had never been made before the Commissioner. In that regard, they relied on
the dicta of Fennelly J. in Rotunda Hospital and also the views of this court expressed in
McKillen v. The Information Commissioner [2016] IEHC 27.
29. They submitted that the standard of review argued for by the Minister was akin to
an appeal on the merits wherein the Minister argued that he got the balancing test right
and the Commissioner got it wrong. The correct test was whether or not there was no
evidence to support the Commissioner's decision and the onus was on the Minister to
establish this.
30. They submitted that the "exceptional circumstances" test was one that the terms of
the Act itself by definition required - all information is prima facie disclosable unless
coming within an exception specified by the Act. It was in any event a test approved by
the court in a number of authorities to which I shall refer. Furthermore, the
Commissioner was entitled to adopt a standard which he considered appropriate in the
context of disclosing information alleged to be commercially sensitive. In adopting the
criterion that there was no evidence that enet's business would be "totally undermined",
this was a standard he was entitled to adopt within the margin of discretion afforded
him by the Act and it could not be disturbed unless it was so irrational as to fly in the
face of fundamental reason and common sense.
31. On the issue of s. 35 (2), the Commissioner and Mr. Sheridan submitted that this
section is clear in its terms and applied to this case. Accordingly the Minister was not
entitled to rely on any confidential information exemption provided for by the terms of
s. 35 (1).

Discussion

32. The standard of review in an appeal on a point of law from a decision of the
Commissioner has been considered in a number of cases. In Deely v. The Information
Commissioner [2001] 3 I.R. 439, McKechnie J. said (at p. 452):

"There is no doubt but that when a court is considering only a point of law, whether by
way of a restricted appeal or via a case stated, the distinction in my view being
irrelevant, it is, in accordance with established principles, confined as to its remit, in the
manner following:-
(a) it cannot set aside findings of primary fact unless there is no
evidence to support such findings;
(b) it ought not to set aside inferences drawn from such facts unless
such inferences were ones which no reasonable decision making body
could draw;
(c) it can however, reverse such inferences, if the same were based
on the interpretation of documents and should do so if incorrect; and
finally;
(d) if the conclusion reached by such bodies shows that they have
taken an erroneous view of the law, then that also is a ground for
setting aside the resulting decision."

Deely was an appeal on a point of law pursuant to s. 42 of the 1997 Act, the
predecessor of s. 24 of the 2014 Act.
33. Killilea v. the Information Commissioner [2003] 2 I.R. 402 was another s. 42 appeal
in which Murphy J. said (at p. 426):

"If a decision of the respondent to discontinue a review, taken in the exercise of the
discretion vested in him by the Oireachtas by means of s. 34(9) of the Act is, properly
speaking, within the scope of s. 42(1) of the Act, it is submitted that the court ought
only to upset the respondent's exercise of such discretion if the same were found to
have fallen foul of the judicial review standard of reasonableness. In other words, it is
submitted that the court ought not to interfere with the respondent's decision to
discontinue his review of the decision made by the Department in this case unless it
considers his decision to fly in the face of fundamental reason or common sense or to
be so irrational or unreasonable that no reasonable Commissioner could have come to
it."

34. Similar sentiments were expressed by Kearns J. in the Supreme Court in Sheedy v.
Information Commissioner [2005] 2 I.R. 272, where he said (at p. 299):

"Nor do I believe that any exhaustive analysis conducted by reference to detailed
evidence was necessary before the respondent could decide to apply the public interest
provision of s. 21(2) of the Act of 1997 to direct release of the reports. Once there was
some evidence before him as to the circumstances in which these reports are compiled,
as undoubtedly was the case here, the well established principles of O'Keeffe v. An Bord
Pleanála [1993] 1 I.R. 39 make it clear that his decision is not to be interfered with.
This assessment, which involved a balancing exercise between various competing
interests, was one uniquely within his particular remit."

35. In a similar appeal in Gannon v. the Information Commissioner [2006] 1 I.R. 270
Quirke J. applied the Deely and O'Keeffe standard to an appeal on a point of law. Again
in Westwood Club v. the Information Commissioner [2014] IEHC 375, Cross J. also
followed Deely and determined that the onus of proof in an appeal on a point of law
rests on the appellant who has to satisfy the O'Keeffe test.
36. In reviewing these authorities in McKillen v. The Information Commissioner [2016]
IEHC 27, I offered the view (at p. 21):

"It seems to me therefore that at this juncture, it is beyond argument that the standard
to be met by an appellant in a s. 42 appeal is virtually indistinguishable from that
applied by the court in judicial review matters. Accordingly, a decision of the respondent
will not be interfered with unless it is either based on no evidence or flies in the face of
fundamental reason and common sense. It is thus immaterial if the court would have
arrived at a different decision based on the same evidence. Inferences will not be set
aside unless they are such that no reasonable decision maker could have drawn them."

37. In Fitzgibbon v. The Law Society of Ireland [2015] 1 I.R. 516, Clarke J., speaking
obiter in the Supreme Court, said that appeals on points of law should be assumed to
permit some greater degree of review than might apply in judicial review. In that
context he suggested that errors of law which might amount to errors within jurisdiction
might not be amenable to judicial review but could form the subject matter of an appeal
on a point of law.
38. The Minister's argument in relation to s. 22 (12) (b) rests almost entirely on the
following passage from the judgment of Macken J. in Rotunda Hospital which considered
the latter section's predecessor under the 1997 Act, s. 34 (12) (b). At page 78 of the
judgment, Macken J. said:

"A separate argument of a more general nature is made by the respondent that she was
entitled, in considering the application of s. 26(3), to have regard to the provisions of s.
34(12)(b) of the Act. It provides:-
'[A] decision to refuse to grant a request under section 7 shall be presumed not to have
been justified unless the head concerned shows to the satisfaction of the Commissioner
that the decision was justified.'
This is a very clear statement which, on its face, appears to apply to all
decisions. I have no difficulty in its application to all circumstances covered
by the right of access in s. 6(1). I have a significant difficulty in its
application to requests made in respect of information exempt from
disclosure under Part III of the Act, which by statute mandates a refusal,
and to which no right of access exists. It is difficult to see how it would
apply to the provisions of ss. 19 to 32, other than the head in question
meeting the terms of the various sections. Even then it is difficult to see
how a head goes about "justifying" a decision in the case of, say, s. 19(1)
(a), which exempts from disclosure, inter alia , a record which has been or
is proposed to be submitted to the Government for its consideration, which
I take as the first example of the type of record covered. Either s. 34(12)
does not apply to such exempt records, or it is sufficiently satisfied by proof
that the record in question is, in fact, one submitted to or is proposed to be
submitted to the Government. Such proof would likely suffice if it is made
by an appropriate person, and could not be rejected by the respondent,
save in the most exceptional circumstances, of which I can imagine none. If
therefore s. 34(12) of the Act does apply, and I do not accept the
respondent has established that it does, to Part III records, then compliance
with the terms of s. 26(1)(a) also appears sufficient to justify the decision
made. In the present case I am satisfied that that legal requirement was
complied with by the submissions made on the part of the appellant
responding to the criteria mentioned in the section itself, and from the
terms of its original refusal. As I have mentioned previously in this
judgment, neither the respondent nor the High Court Judge suggested that
the opinion criteria mentioned in s. 26(1)(a) were not met."

39. The Minister argues that this passage establishes the proposition that s. 22 (12) (b)
does not apply to exempt records under Part 4 of 2014 Act. I disagree. The first point to
be noted about the above passage is that it is, as Macken J. herself remarked, entirely
obiter. It is also appears to be somewhat at odds with the views of Fennelly J.
expressed in the same case. At page 29 of the report, he considers the issue of whether
or not the High Court should have entertained a point not raised before the
Commissioner. In dealing with this, he said (at page 30):

"[87] It is important to bear in mind that the appeal to the High Court is
taken from a review by the respondent pursuant to s. 34 of the Act. [He
then recites the Section].
[88] The respondent relies, in particular, on para. (b), which places a
burden on the body refusing a request to justify its decision. I agree that it
is, thereby necessarily implied that the body will raise before the
respondent any point of law which supports its position. Although s. 42(1)
does not expressly say so, I think it is an integral part of any appeal
process, other than possibly an appeal by complete re-hearing, that any
point of law advanced on appeal shall have been advanced, argued and
determined at first instance."

40. Accordingly, Fennelly J. expressly accepted that the presumption contained in s. 34
(12) of the 1997 Act applied to the facts of that case which concerned exempt records.
41. In Westwood Club, which was concerned with commercially sensitive and thus
exempt records, Cross J. accepted the proposition that the presumption under s. 34
(12) of the 1997 Act applied to such records. - (see paras. 100 to 107 of the
judgment). That of course post dated the Rotunda Hospital case. It is also of
significance that the 2014 Act was enacted subsequent to the decision of the Supreme
Court in Rotunda Hospital. Despite the comments of Macken J. to which I have referred,
the Oireachtas re-enacted s. 22 (12) (b) in identical terms to the earlier s. 34 (12) (b).
It seems to me that had the Oireachtas wished to create an express exception from the
presumption for exempt records as that expression is defined in s. 2 of the 2014 Act, it
would have been a simple matter to do so. It could have prefaced the subsection by
words such as "save in the case of exempt records", or words to like effect to make
clear that the presumption does not apply to, inter alia, Part 4 records. The Oireachtas
chose not to do so and it seems to me that the meaning and intent of the section is
absolutely clear. It applies to all information in the possession of public and other
bodies subject to the 2014 Act. I am therefore of the opinion that in applying the
presumption in this case, there was no error on the part of the Commissioner.
42. However, even if I were to be wrong in expressing that view, I am satisfied that this
is not a point that the Minister is entitled to raise in this appeal as it was not raised
before the Commissioner. In the letter of 12th May, 2015, referred to above, the
Commissioner made it clear that he was of the view that s. 22 (12) (b) applied and thus
he was approaching the matter in the light of the presumption provided for in that
subsection. The Minister raised no objection. In Rotunda Hospital, Fennelly J. said (at p.
29):

"[90.] I do not accept that the new point should have been considered either because
many other cases raised the same issue or because it was a matter of importance. The
Act is clear: an appeal to the High Court lies only in respect of a point of law. It must be
a point of law involved in the decision under appeal. Thus, I do not think the High Court
should have entertained the point."

43. In McKillen I referred to this and the earlier authorities of South Western Area
Health Board v. the Information Commissioner [2005] 2 I.R. 547 and Minister for
Education v. The Information Commissioner [2009] 1 I.R. 588 as well as the above
cited dicta of Fennelly J. and concluded (at p. 23):

"A s. 42 appeal is not a de novo hearing where the appellant is at large to advance new
arguments or evidence not put before the respondent. It is an appeal on a point of law
which was considered and dealt with by the respondent. It is not here suggested that
there are new arguments or evidence not available to the appellant at the time the
respondent decided the matter or that the appellant was disadvantaged in any way, for
example, by the lack of legal advice. As Smyth J. remarked, it would be entirely
unsatisfactory if appeals on pure points of law could be run on the basis of matters
never raised before, let alone considered and decided by, the respondent. That would
transform the appeal into something quite different from that envisaged by the Act."

44. Turning now to s. 35 of the Act, the s. 35 (1) confidentiality exemption only arises if
it is not disapplied by s. 35 (2). It seems to me that s. 35 (2) is unambiguous. It was
not suggested on behalf of the Minister that enet is other than a service provider within
the meaning of the subsection. In general, a Freedom of Information body and a party
providing services to such body cannot rely on a confidentiality clause as between
themselves to prevent access to information held by the Freedom of Information body.
There are obviously sound policy reasons why this should be so, consistent with the
object of the legislation. The only exception that arises is in cases where the duty of
confidence is owed to a third party other than the Freedom of Information body or the
service provider.
45. The long title to the Act makes clear its objectives which include:

"to enable members of the public to obtain access, to the greatest extent possible
consistent with the public interest and the right to privacy, to information in the
possession of public bodies ..."

46. The Act's "mission statement" is further amplified by the terms of s. 11 (3) above.
In dealing with the 2014 Act's predecessor, Fennelly J. made the following observations
in Sheedy v. the Information Commissioner [2005] 2 I.R. 272, at page 275:

"The passing of the Freedom of Information Act 1997 constituted a legislative
development of major importance. By it, the Oireachtas took a considered and
deliberate step which dramatically alters the administrative assumptions and culture of
centuries. It replaces the presumption of secrecy with one of openness. It is designed to
open up the workings of government and administration to scrutiny. It is not designed
simply to satisfy the appetite of the media for stories. It is for the benefit of every
citizen. It lets light in to the offices and filing cabinets of our rulers. The principle of free
access to publicly held information is part of a world-wide trend. The general
assumption is that it originates in the Scandinavian countries. The Treaty of Amsterdam
adopted a new Article 255 of the EC Treaty providing that every citizen of the European
Union should have access to the documents of the European Parliament, Council and
Commission."

47. It would be somewhat surprising if the laudable objectives identified by the Act
itself could be defeated by the simple expedient of inserting confidentiality clauses into
contracts between public bodies and those who provide services to them for reward.
The interpretation contended for by the Minister is in my view somewhat tortuous and
contrary to the plain meaning of the words actually used.
48. I am therefore satisfied that s. 35 (2) applies in this instance and accordingly, a
consideration of s. 35 (1) or (3) is immaterial.
49. With regard to the s. 36 issue, it is common case as between the parties that the
information in question is commercially sensitive and that s. 36 (1) therefore applies. In
that event, it was necessary for the Commissioner to consider whether the public
interest would on balance be better served by granting than, by refusing the Freedom
of Information request under s. 36 (3). In respect of this, the Minister criticises the
Commissioner for considering that exceptional circumstances needed to be shown by
the Minister to justify the refusal. The provisions of the Act to which I have referred
make clear that all information is disclosable subject to exceptions. By definition
therefore, exceptional circumstances must exist to justify the refusal. In this case, the
onus of justification rested upon the Minister having regard to the provisions of s. 22
(12) (b). This is also consistent with the approach of the courts. In Minister for
Education v. The Information Commissioner [2009] 1 I.R. 588, McGovern J. noted (at p.
594):

"The Act provides that it was the intention of the Oireachtas that it is only in exceptional
cases that members of the public should be deprived of access to information in the
possession of public bodies. It is clear that the legislation operates on the basis that a
decision to refuse to grant a request is to be presumed by the Commissioner not to
have been justified."

50. Similar views were expressed by O'Donovan J. in Minister for Agriculture & Food v.
the Information Commissioner [2000] 1 I.R. 309 at p. 319 where he said:

"... in the light of its preamble, it seems to me that there can be no doubt but that it
was the intention of the legislature, when enacting the provisions of the Freedom of
Information Act, 1997, that it was only in exceptional cases that members of the public
at large should be deprived of access to information in the possession of public bodies
and this intention is exemplified by the provision of s. 34(12)(b) of the Act which
provides that a decision to refuse to grant access to information sought shall be
presumed not to have been justified until the contrary is shown."

51. To my mind therefore there is nothing novel or innovative and less still erroneous in
the Commissioner's determination that the onus was on the Minister to demonstrate
exceptional circumstances to justify the refusal in this case.
52. It will be recalled in the instant case that the preliminary view expressed by the
Minister was that the public interest favoured disclosure of the concession agreement.
However, he came to a different conclusion after consultation with enet despite the fact
that there appeared to be little of substance in enets's submission regarding what the
actual commercial sensitivity alleged was. In this respect, the Commissioner in his
decision noted:

"Furthermore, neither the Department nor enet identified for this office particularly
sensitive information within the contract, the release of which would disclose (for
example) enet's internal business methodology. In the High Court case of Westwood
Club v. The Information Commissioner [2014] IEHC 375, Cross J. held that a public
body must do more than repeat the requirements of the exemption. It must engage
with the question of why the particular documents, if disclosed, could prejudice the
position of the third party."

53. This appears to me to be an eminently reasonable conclusion on the part of the
Commissioner having regard to the effect of the presumption against refusal and it is
difficult to see how it could ever be said that this was somehow irrational or contrary to
fundamental reason and common sense.
54. It is clear from the Commissioner's decision that, unlike the Minister, he explicitly
engaged with the arguments advanced in support of non disclosure and discounted
them in turn. He did not accept the argument that the release of the information would
deter future bidders or that it would automatically benefit future tenderers. Following
earlier decisions of the Commissioner, he concluded that neither the Minister nor enet
had demonstrated that the release of the contract would totally undermine enet's
business. Of course this conclusion has to be viewed in the light of the submission made
by the Minister on 30th July, 2015, to the Commissioner in which the Minister said:

"the disclosure of this information would undermine E-Net's business."

55. This was but one factor in the overall conclusion reached by the Commissioner and
in the context of this particular case, I do not think it could be said that this was an
irrational consideration or one that was not within the Commissioner's discretion to
apply in reaching a determination of what was, or was not, in the public interest. It was
no more than part of the balancing exercise undertaken by the Commissioner in relation
to his assessment of the competing interests that had to be weighed in that balance,
regard being had at all times to the overarching presumption against refusal and the
objectives of the Act. As Kearns J. noted in Sheedy that balancing exercise was one
uniquely within the Commissioner's remit. It is not for the court to revisit the correct
balance.
Conclusion
56. At the end of the day, it seems to me difficult to resist the conclusion that the
Minister's case comes down to the contention that he got the balance right and the
Commissioner got it wrong. For the reasons explained, that is not something with which
the court can engage in an appeal on a point of law.
57. Accordingly, I must dismiss this appeal.
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Annual Report 2016