In McKillen v Information Commissioner [2016] IEHC 27 the High Court dismissed an appeal against a decision of the Information Commissioner (IC).  This is an interesting decision which considers the scope of an appeal against a decision of the IC and the use of freedom of information (FOI) versus discovery as a litigation tool.  

The court confirmed that the standard to be met by an appellant, in an appeal to the High Court against a decision of the IC, pursuant to section 42 of the FOI Act 1997, as amended, is virtually indistinguishable from that applied by the court in judicial review matters.  A decision of the IC will not be interfered with unless it was made without any evidentiary basis or devoid of fundamental reason and common sense. 

The court also held that it was bound to follow the decision of the High Court in EH v The Information Commissioner [2001] 2 I.R. 463, which shows that access to any records provided under discovery must be refused under FOI, on the basis that disclosure under FOI would constitute a contempt of court, pursuant to section 22(1)(b) of the FOI Act 1997, as amended.  The court refused to distinguish this case on the basis that the FOI request here was made prior to the making of the discovery order, unlike in EH.  

It is worth noting that although this decision was made on the basis of provisions of the FOI Act 1997, as amended, which has now been repealed, similar provisions exist in the FOI Act 2014, and it therefore continues to be relevance. 

Background

These proceedings concerned an appeal to the High Court by Mr McKillen (the appellant) against a decision of the IC, upholding a decision of the Department of Finance, refusing him access to certain financial documents.  

The appellant was the largest shareholder in Maybourne Hotel Group (the Group) in London which owned a number of well-known hotels.  A hostile takeover bid of the Group was launched by the Barclay brothers, which was vigorously opposed by the appellant.  This led to litigation in the High Court of England and Wales in 2012.  The appellant alleged that as part of the Barclay brothers' strategy in pursuing the bid, they sought in 2011 to acquire certain personal and corporate loans of the appellant with Irish Bank Resolution Corporation (IBRC) and to that end lobbied various parties including the Minister for Finance and NAMA.  

The appellant requested from the Department of Finance access to any records concerning him or his personal or business loans.  The Minister responded by enclosing a tabulated schedule of 19 records which it considered relevant to the appellant's FOI request.  The Department of Finance refused access to 13 of the records, and granted access in part, subject to redactions, in respect of the other 6 records. 

The appellant sought an internal appeal of this decision, the result of which was to confirm the original decision, subject to a minor variation in the case of 2 records by removing some of the redactions. The appellant then applied to the IC for a review of the Department's decision.  Ms. Lynch, an officer of the IC, informed the appellant's solicitor that those documents which had been supplied through discovery (in the context of litigation between the appellant and the Minister of Finance) could not be supplied through FOI.  She explained that a party obtaining the production of documents by discovery in an action gives an implied undertaking to the court that he or she will not make any use of the documents or information contained therein otherwise than for the purpose of the action, and that disclosure under FOI would breach such an undertaking. Ms. Lynch referred to the decision in EH,  as demonstrating that access to any records provided under discovery must be refused under FOI, pursuant to section 22(1)(b) of the FOI Act 1997, as amended.  

The IC's Decision 

Dealing with records 6 to 16, the IC noted that the Minister for Finance had informed her that these records had been provided to the appellant pursuant to an order for discovery.  The IC found that these records were exempt from release under section 22(1)(b), which is a mandatory exemption requiring refusal of access under FOI where disclosure would constitute a contempt of court. 

With regard to record 5, which comprised a series of external and internal emails regarding a potential interest in the sale of an asset, the IC found that the information redacted from the record was exempt from release pursuant to section 27(1)(b), on the grounds that it contained commercially sensitive information.  The IC further found that the public interest would not be better served by granting than by refusing disclosure of the information. 

The Arguments on Appeal

The appeal concerned records 5 to 16.  Counsel for the appellant contended, in respect of record 5, that there was no public interest served by preserving the confidentiality of what were described as inappropriate approaches to the Government regarding potential disposal of an asset by an independent State agency. 

Counsel for the appellant further submitted that contrary to the information supplied by the Minister for Finance, records 6 to 9 were not the subject of any order for discovery, and such discovery related only to records 10 to 16 inclusive.  Accordingly, there was a manifest error made by the IC with regard to the applicability of section 22(1)(b) to records 6 to 9. 

With regard to records 10 to 16, counsel for the appellant sought to distinguish EH on the basis that the FOI request here pre-dated the making of the discovery order in the later proceedings.  As an alternative to distinguishing EH, the appellant submitted that it was wrongly decided and should not be followed. Counsel argued that it would be unjust if the appellant were precluded from accessing documents which were readily available, for example, to the press and media, and that this would be contrary to the spirit of the FOI legislation generally. 

Counsel for the IC submitted that none of the appellant's arguments made in the course of this appeal had ever been addressed to the IC. He submitted that the court could not consider grounds of appeal based on either submissions or material not before the IC.  He further contended that the onus of proof was on the appellant to prove error of law on the part of the IC and the decision should not be interfered with unless it was demonstrated to be irrational or unreasonable. 

High Court Decision 

Judge Noonan dismissed the appeal of the appellant.  The court was satisfied that no error of law had been demonstrated by the appellant in the IC's approach to record 5.  In relation to the remaining records 6-16, the court held that the IC was bound to follow the decision in EH and it was satisfied that it did so correctly. 

FOI Versus Discovery 

The court held that it was bound by the decision in EH that a party obtaining the production of documents by discovery in court proceedings gives an implicit undertaking to the court that he or she will not make any use of the documents or the information contained therein otherwise than for the purpose of the action.  Where an FOI body or the IC is aware that there is in existence an undertaking to a court pursuant to a discovery order in regard to certain documents, section 22(1)(b) requires disclosure of those documents under  FOI to be refused, on the basis that such disclosure would constitute a contempt of court.  

Judge Noonan refused to distinguish the current case on the basis that the FOI request here had been made prior to the making of the discovery order, unlike in EH.  He stated that that fact made no material difference, and that "the views expressed by O'Neill J. [in EH] could not be clearer".  

Nature of Appeal to the High Court 

The court held that the standard to be met by an appellant in an appeal pursuant to section 42 is virtually indistinguishable from that applied by the court in judicial review matters.  The court held that the decision of the IC should not be interfered with unless it was made without any evidentiary basis or devoid of fundamental reason and common sense.  Judge Noonan therefore found that it was immaterial if the court would have arrived at a different decision based on the same evidence.  

The court highlighted that an appeal to the High Court against a decision of the IC is not a de novo hearing, where the appellant is at large to advance new arguments or evidence not put before the IC.  It is an appeal on a point of law which was considered and dealt with by the IC. 

Comments 

This decision is interesting as it was widely accepted that if one wanted to make ulterior use of documents produced on discovery and which are also available by way of FOI, a request ought first to be made under the FOI Act and discovery sought subsequently.  However Judge Noonan refused to interpret the decision in EH in this manner. Instead he indicated that the order in which discovery and FOI is made is irrelevant. According to Judge Noonan, whether a discovery order is made before or after an FOI request, in respect of the same documents, disclosure must be refused under the FOI legislation, on the grounds that such disclosure would constitute a contempt of court. 

The decision also serves as a reminder of the scope of an appeal against a decision of the IC.  It is worth noting, however, that whilst the scope of an appeal under section 24 of the FOI Act 2014 is similar to the section 42 of the FOI Act 1997, as amended, the grounds for an appeal have been broadened to allow an appeal to the High Court on a finding of fact set out in a decision of the IC, where a person contends that the release of a record would contravene a requirement imposed by EU law.