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‘Cry freedom’

29 Jun 2019 / legislation Print

Cry freedom

Two judgments delivered in recent weeks appear to have created something of an earthquake in the usually tranquil field of freedom of information (FOI) law.

Among the comments from information campaigners, journalists, and their union on the two superior court judgments delivered in March and April 2019 were:

•           “The act is now – and I use this word carefully – dead.”

•           “This is a catastrophically bad decision.”

•           “Runs a coach and horses through the entire Freedom of Information Act.”

•           “An extremely worrying judgment … has the potential to turn the clock back on FOI.”

The judgments also caught the attention of frontbench politicians, with Sinn Féin’s Pearse Doherty commenting that the judgments were contrary to the purpose of FOI laws, and that his party would introduce amending legislation if necessary.

So why might this be of interest to practitioners?

Information law is a field that is becoming increasingly relevant in different areas of practice, not just for those who specialise in the area.

Many practitioners advising public bodies and media organisations, on a wide range of issues, find themselves asked to provide advice on raising and responding to FOI requests, and on dealing with appeals to the Office of the Information Commissioner (OIC), as well as onward appeals to the High Court on a point of law.

In parallel, FOI is increasingly used as a sword in disputes involving public bodies, as parties to litigation seek to use every possible method of obtaining information from opponents.

This is becoming particularly relevant since the restrictions on the discovery process imposed by the 2018 judgment in Tobin v Minister for Defence. The range of public bodies subject to FOI law – referred to as ‘FOI bodies’ – was of course substantially expanded by the Freedom of Information Act 2014, which has contributed to this trend.

Against that backdrop, what are the practical consequences of these recent judgments for practitioners?

The issue that has been exercising journalists and campaigners is the presumption in favour of releasing information, which is provided by the legislation, and its apparent dilution by these judgments.

Access

The basic framework of FOI legislation is to provide a right of access to information held by FOI bodies, subject to a number of exemptions (for example, commercially sensitive information, information disclosed in confidence, and personal information).

A cornerstone of this framework has been the presumption in favour of disclosure, which provides that, in an appeal to the OIC, a decision to refuse will be presumed not to be justified, unless the FOI body shows to the satisfaction of the OIC that the refusal is justified.

Effectively this places the onus on the FOI body to show that the refusal was justified, otherwise the refusal will be overturned.

(The presumption is provided by section 22(12)(b) of the 2014 act; a similar provision previously existed in section 34(12)(b) of the Freedom of Information Act 1997.)

This presumption has been of central importance to the way in which the OIC has decided appeals of refusal decisions and, in particular, to the way in which the OIC has decided whether one of the statutory exemptions validly applies in a particular case to permit the refusal.

Refuse

In a number of cases, where the OIC has found that the decision to refuse has not been justified by the decision-maker in its submissions, the OIC has deemed that finding alone to be enough to justify overturning the decision (that is, without itself considering the merits of whether the exemption applies).

Decision-makers in FOI bodies, in turn, have in many cases been trained to apply the presumption to their decision-making and to treat releasing the information as the default position.

In policy terms, information campaigners and media organisations argue that the existence of the presumption is vital: if there is no presumption, the argument goes, the OIC’s role will be reduced to that of rubber-stamping the decision of the FOI body, as the requester simply will not have access to the relevant documents or information to enable it to satisfy the OIC that whichever exemption is being claimed does not apply.

However, the way in which the presumption has been applied has sometimes been the source of frustration to FOI bodies, particularly in areas where they are in competition with private organisations not subject to FOI law.

The presumption was central to the two recent judgments mentioned. The cases in question are Minister for Communications, Energy and Natural Resources v Information Commissioner (6 March 2019; referred to as ‘ENet’); and UCC v Information Commissioner, delivered on 3 April 2019 (‘UCC’).

The facts of the two cases are relatively similar.

•           The FOI body in each case (the Department of Communications and UCC) had refused access to certain information after an FOI request from a journalist,

•           The decision-maker in the FOI body refused access to information in question on the basis that it was commercially sensitive – the exemptions applied were section 35 (information obtained in confidence) and section 36 (commercially sensitive information),

•           The requester appealed to the OIC, who overturned the decision of the FOI body and granted access to the information in question.

The information in question in each case was:

•           ENet – contracts between the Department of Communications and ENet relating to the provision of broadband services by ENet via the Metropolitan Area Networks, and

•           UCC – certain financial information, including that contained in a loan agreement between UCC and the European Investment Bank.

In both judgments, the court overturned the OIC’s decision in terms that appeared to cast significant doubt on the continuing application of the presumption in favour of disclosure. In so doing, both judgments relied heavily on the 2011 judgment of Macken J in Rotunda Hospital v Information Commissioner

Impact

So what impact do these judgments have for future FOI decisions and appeals?

Firstly, on the strict terms of the judgments, the changes will only apply (directly in any event) in the case of an exemption to which section 11(7) of the 2014 act applies, which means in one of two circumstances:

•           Where the exemption is mandatory, or

•           Where the exemption is discretionary and involves a public-interest test, and the application of the public-interest test results in a refusal.

Determining whether the exemption in question comes within section 11(7) in an individual case will involve an analysis of the terms of the statutory exemption and the way in which it was applied in the particular case. A brief analysis suggests that a significant number of cases will be captured by section 11(7).

Secondly, on the question of whether, in a case to which section 11(7) applies, the presumption has been removed or diluted and to what extent, there is no definitive answer to this question at this time.

The OIC has published a note on its website saying that it plans to petition the Supreme Court for leave to appeal in the ENet case, and that, in the interim, “the correct legal basis for applying section 22(12)(b) is not clear … users of this guidance should treat all references to the presumption as set out in section 22(12)(b) with caution until the matter is clarified”.

An analysis of both judgments shows that there are two possible states of play post-ENet and UCC:

a)         The presumption is removed entirely, or

b)         The presumption is clarified: the onus that is on the FOI body is simply to satisfy the OIC that the exemption in question applies – there is no onus on the FOI body to provide an additional justification over and above the fact that the exemption applies, for refusing to release the information in question.

Clarity

While, pending any further clarity provided by the Supreme Court, it is not possible to be definitive from the terms of the judgments, on balance the better view is (b), for the following reasons.

Firstly, the ratio contained in the seminal passage from the judgment of Macken J in the Rotunda case (at paragraphs 258-9), which is now post-ENet confirmed to represent the judgment of the Supreme Court and not to be obiter, provides clear support for view (b): “In the present case, I am satisfied that that legal requirement was complied with by the submissions made on the part of the hospital responding to the criteria mentioned in the section itself, and from the terms of its original refusal.”

Secondly, UCC, the most recent judgment, which was explicitly decided on the basis of ENet as well as Rotunda, provides clear support for view (b). Relevant passages include (emphasis added): “The 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.”

Authority

Thirdly, the balance of the authority from the ENet judgment and, in particular, the discussion of the Rotunda judgment, and the reliance on the fact that it was not in dispute that the records were commercially sensitive, also supports view (b), and the single line from the conclusion of the judgment in ENet (paragraph 44), which is the strongest support for view (a), can, in fact, be interpreted as also providing support for view (b).

However, the above must be treated with caution until these matters are further clarified.

What next? Two key decisions are awaited to see how these judgments impact on the treatment of FOI requests.

Firstly, we await decisions of the Supreme Court in the ENet case. At the time of writing, it is not clear whether the UCC case will be the subject of any appeal.

Presumption

Secondly, we also await the first post-ENet treatment of the presumption in a decision of the OIC. This will provide helpful precedent to practitioners on how the OIC intends to treat the presumption pending any Supreme Court judgment.

From a practical perspective, practitioners acting on behalf of FOI bodies who have recently had decisions overturned by the OIC on the basis of the section 22(12)(b) presumption may wish to consider their appeal options, bearing in mind, however, that the time limit for bringing such an appeal is four weeks from notice of the OIC decision (extendable to eight weeks in certain circumstances).

A brief analysis of recently published OIC decisions in which the presumption has been applied reveals a number of decisions which could potentially be challenged on the basis of ENet and UCC, subject to time limits.

Although there has been a definite shift in favour of refusing information, the consequences of these judgments do not appear to be as dramatic as some commentators have suggested.

The best provisional interim guidance for practitioners, whether in advising an FOI body or dealing with an appeal, is:

•           Check whether section 11(7) applies to the exemption in question – if it does not, the presumption in favour of disclosure should be applied as before,

•           If section 11(7) does apply to the exemption, then the requirement is simply for the FOI body to be able to show to the satisfaction of the OIC that the particular exemption applies: the FOI body is not required to provide any additional justification on top of this.

FOI bodies and their legal advisers may be encouraged by the fact that, in a case to which section 11(7) applies, the burden that is on their clients in an appeal is now simply to show that the exemption in question applies.

However, reports of the FOI act’s death appear to have been greatly exaggerated

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