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Annual Report 2001 Text Version
Some High Court Judgements
School League Tables
During 2001 the High Court delivered its judgement on what had become known as the “school league tables” case. The background was that in the period July - October 1998 a number of newspapers had applied to the Department of Education and Science for certain information, including examination results, in relation to secondary schools. The Department refused these requests and the newspapers duly appealed to my Office for a review of the decisions of the Department. The first of these review applications was received in my Office in late September 1998. This case hinged on whether Section 53 of the Education Act 1998 - which came into force on 5 February 1999 after my review of the decisions of the Department of Education and Science had commenced - should have been accepted by me as precluding the information requested being released. In my decision of 7 October 1999, directing release, I had taken account of section 6 of the FOI Act which provides that every person “has a right to and shall, on request therefor, be offered access to any record” subject to various exemptions. I had examined all the different exemptions put forward by the Department when refusing the requests and had found that none of them applied - a finding which was not disputed at the High Court hearing. Because I considered that my decision must be based on the circumstances prevailing at the time of decision, I felt obliged to have regard to section 53 of the Education Act, 1998 in the context of the exemption in section 32 of the FOI Act. However, I considered that if I were to find that section 53 of the Education Act, 1998, precluded release, I could well be taking away a vested right to records on a retrospective basis. In its judgement, the Court confirmed that my review of the decision to refuse access was by way of a hearing de novo but found that the application of section 53 was retroactive rather than retrospective because my decision was taken after that section had come into force. A related finding of the Court was that the application of section 53 of the Education Act, 1998 did not constitute the removal of a vested right to records; the Court decided that such a right did not become a vested right until a decision to grant access to the records had been given.
If it had been possible for me to reach my decision within the time limits specified in the FOI Act (which predated the coming into force of section 53) the requesters’ right to the records would have become a vested right at the time of that decision. In that context, it is, perhaps, unfortunate that the requesters lost the right of access because of unavoidable administrative delays.
Discovery and Contempt of Court
Another interesting High Court judgement concerned a decision I had taken affirming a refusal by the then Eastern Health Board to release certain records on the grounds that disclosure would constitute contempt of court [section 22(1)(b)]. The requester had already obtained an order of discovery of the records concerned against the Eastern Health Board in previous court proceedings but on the basis of a very specific undertaking in relation to their confidentiality. He wished, however, to obtain access to the same records under the FOI Act presumably because his use of such records would not be restricted by that Act. My decision to affirm refusal was in recognition of the Courts’ expressed concern that disclosure of the records should be restricted. I went on to say:
“I do not wish at this stage to express a definitive view as to the position which would obtain where the usual implied undertaking is given by the person obtaining discovery. However, it seems to me that the disclosure by a public body, under the FOI Act, of records which had previously been discovered by it in legal proceedings and which have been the subject only of the usual undertaking by the other party to those proceedings, is not a contempt of court”.
The “implied undertaking” is an undertaking not to use the discovered documents for purposes other than the litigation in which discovery is made.
The Court, while confirming my decision in the particular case, took issue with me on the view I had expressed about disclosure, where discovery was made on the normal basis. It said:
“The Commissioner was, in my view wrong, in his conclusion that the usual undertaking given in relation to discovery would not give rise to a contempt of Court. Breach of the implied undertaking given in respect of discovered documents is a contempt of Court. Notwithstanding that the undertaking benefits solely the party making discovery, the undertaking is given to the Court and like all undertakings given to a Court, breach of it is a contempt of the Court. Indeed this is abundantly clear from the case of Home Office -v- Harmon (H.L) E (1983) AC 280, a case which was cited to the Court by Mr. Hogan and relied upon by Mr. Murphy.
True, in the case of the usual implied undertaking the party for whose benefit it is given i.e. the party making disclosure can waive the undertaking but in the absence of such waiver as in the present case the undertaking continues as an undertaking to the Court with all of the attending consequences of a breach of an undertaking to the Court.
In the light of this conclusion it is unnecessary for me to decide whether or not the undertaking given in this case expressly, was either co-extensive with the usual implied undertaking or more extensive than it.
I have come to the conclusion that where a head of a public body or the Commissioner is aware that there is in existence an undertaking to a Court be it expressed or implied, that disclosure must be refused on the basis of Section 22(1)(b).”
It is clear that the Court accepts that a public body which is, so to speak, the “owner” of the records may waive an implied undertaking at will. In other words the public body remains free, without being in contempt, to disclose to the world records including records to which discovery has been granted. It seems to me that it would follow that it is open to the public body to waive the undertaking and thus allow the giving of a new decision under the FOI Act in a context where the question of contempt of Court simply would not arise. Indeed, in all situations where only the usual undertaking has been given in the course of discovery, I would expect that this is the approach public bodies would take.
In the case of the Home Office V Harman the British House of Lords found a solicitor guilty of a serious contempt of court because she had allowed access by a journalist to documents discovered by the Home Office in an action against it by her client. It is significant that the contempt was by the person who had been granted discovery and there is no implication in that case that release by the Home Office would constitute a contempt. It is of interest that the solicitor concerned appealed the decision of the House of Lords to the European Court of Human Rights and that a friendly settlement was reached with the Home Office leading subsequently to a change in the law relating to discovery.
