Court rules public bodies must justify refusals to disclose certain documents

Judgments will have implications for application of the Freedom of Information Act

The Supreme Court, in important judgments affecting application of the Freedom of Information Act, has ruled public bodies are required to justify refusals to disclose certain confidential or commercially sensitive documents.

A finding by a public body that records are exempt from disclosure under the Act does not automatically mean they cannot be disclosed, Ms Justice Marie Baker held.

She said a decision that records are exempt must be explained and justified and the head of the public body must explain why the public interest does not justify release of the document.

However, the Information Commissioner had imposed an “unduly high bar” by requiring evidence of “exceptional” justifying circumstances to establish a refusal to disclose was lawful, she held.


On foot of those and other findings, the five-judge Suprem Court allowed separate appeals by the commissioner against court rulings which had reversed decisions by the commissioner granting applications by journalist Gavin Sheridan and RTÉ for disclosure of certain records.

The commissioner will now hold fresh reviews, in line with the court’s findings, concerning both applications.

Both appeals concerned the means by which public interest considerations are to be engaged when records are commercially sensitive or confidential.

Mr Sheridan had sought a copy of a contract between the Department for Communications and a firm, e-Nasc Éireann Teoranta (eNet), to manage the State’s fibre-optic broadband network.

The case concerning RTÉ arose from its efforts to obtain details of a €100 million loan given to University College Cork (UCC) by the European Investment Bank (EIB).

Both the Department of Communications and UCC initially refused to release the records on grounds of commercial sensitivity, as provided for under Section 36 of the Act.

The Department said it had a duty of confidence to the private interests of eNet.

UCC told RTÉ that disclosing details of its loan could have resulted in a financial loss to the EIB and have negative implications for the college’s ability to get future loans.

Both refusals were overturned by the commissioner on appeal and the commissioner's decisions were ultimately subject to judgments, by the Court of Appeal in relation to Mr Sheridan's case, and by the High Court on the RTÉ case.

Because both raised important issues regarding construction of provisions of the FOI Act, the Supreme Court agreed to hear further appeals in both matters.

On Friday, Ms Justice Baker delivered the court’s judgments on both appeals. The judgment concerning the Sheridan request centred on section 22 of the FOI Act, concerning justification of a decision to refuse disclosure, and in the context of the public interest “balancing test” in section 36.

The right of access to records under the Act is not absolute and is tempered by exemptions, she said.

Disclosure remains the “starting point” and a departure from that must be justified by reason of the plain terms of sections 36.1.b and 22.12.

The commissioner was correct in arguing sections 35.3 and 36.3 require the public body to justify a refusal, she said.

However, the commissioner imposed an “unduly high” bar by requiring evidence of justifying reasons amounting to “exceptional circumstances” to establish a lawful refusal to disclose. On foot of those findings, she granted the commissioner’s appeal relating to the Sheridan decision.

She dismissed a cross-appeal by the Minister in that case concerning interpretation of section 35.2 of the Act.

She said confidentiality agreements between public bodies and third parties may come within the exemption from disclosure in section 35.1, subject to the public interest override in section 35.3.

Information may be excluded if its disclosure would constitute breach of a duty of confidence created by a contract, statute or statutory instrument and the public interest override in section 35.3 did not apply to such information.

She said Section 35. 2 prevents a public body generating confidentiality by its own actions if there is no contractual or statutory basis for that, she held. Section 35.2 was enacted to avoid a public body and a third party service provider relying on a confidentiality clause to prevent disclosure.

In a separate judgment allowing the commissioner’s appeal concerning the RTÉ request, the judge said the main issue of law in that appeal was the correct interpretation and application of section 36.1.b of the Act concerning the commercial sensitivity exemption from disclosure.

While she agreed with several findings of the High Court of a number of failures in the commissioner’s approach in the RTÉ matter, Ms Justice Baker said the High Court had erred in one of its primary reasons for rejecting the commissioner’s approach.

That was its view, based on the earlier Couurt of Appeal judgment on the Sheridan decision, on the commissioner’s approach to the presumption in section 22.12 that a decision to refuse disclosure is unjustified unless the head of the public body concerned can prove to the commissioner’s satisfaction it was justified. On that basis, she allowed the appeal and remitted the matter to the ommissioner.

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