The High Court has recently affirmed on appeal, a decision of the Information Commissioner on the application of section 22(1)(b) of the Freedom of Information Acts 1997 and 2003 (the “Acts”). This relates to the contempt of court exemption to the general obligation to disclose documents under the Acts. The High Court found that the Information Commissioner was justified in refusing to allow access to certain documents, which were the subject of a freedom of information (“FOI”) request, and held crucially that disclosure of documents under FOI, which are the subject of a discovery order, whenever made, is a contempt of court.
This judgment1 was given in an appeal on a point of law against a decision of the Information Commissioner to uphold the Department of Finance’s decision to refuse access to certain documents requested by a Mr McKillen, by way of an FOI request, relating to his personal or business loans. An issue that arose in the proceedings, which is of particular importance for public bodies subject to the FOI regime, was whether section 22(1)(b) could be invoked in respect of a particular group of documents which were included in Mr McKillen’s FOI request, but briefing which were subsequently provided to him under an order for discovery. Section 22(1) (b) provides an exemption to the general disclosure obligation contained in the Acts where a public body knows or ought reasonably to have known that disclosure of the record concerned would constitute contempt of court.
The High Court, following the decision in EH and EPH v the Information Commissioner,2 determined that a contempt of court would arise where documents the subject of a discovery order were disclosed on foot of an FOI request. The disclosure would amount to a breach of the implied undertaking, 3 given to the court following an order for discovery, that the discovered documents will only be used for the purposes of the action in which they are discovered. In reaching this conclusion, Noonan J noted, as outlined in EH and EPH, that the purpose of section 22(1)(b) is to prevent the FOI regime from operating in such a way as to permit interference in the administration of justice. He considered the disclosure of documents, which had been prohibited by an undertaking given to a court, to amount to such a gross and constitutionally impermissible interference. Accordingly, he held that an FOI request made in these circumstances should be refused stating in unequivocal terms that “disclosure of documents the subject of an order for discovery, whenever made, is a contempt of court. Section 22(1)(b) is mandatory and in such circumstances, disclosure must be refused.”
Prior to this decision, the Office of the Information Commissioner had taken the view that the exemption applied only where the documents had actually been discovered to the other party. The McKillen decision however represents authority for the proposition that a public body will not have to demonstrate that documents have in fact been handed over on discovery in order to avail of the contempt of court exemption in respect of an FOI request; instead it will be sufficient to demonstrate that the documents are the subject of a discovery order.
It is also important to note that this exemption applies to documents the subject of a discovery ordered against the public body in the same manner as it does to discovery that was actually provided to the public body and applies regardless of whether the discovery order is made prior to the FOI request or after it.
The McKillen decision is of significance for any public body subject to the FOI regime in that it confirms, in the strongest possible terms, the mandatory application of the contempt of court exemption contained within the FOI regime where documents which are the subject of an order for discovery are sought via an FOI request.
Note: While the High Court appeal was brought under the provisions of the Freedom of Information Acts 1997 – 2003, which have since been repealed, the decision has equal application to the new FOI regime established by the Freedom of Information Act 2014 (section 31(1)(b) of which replicates section 22(1)(b) of the repealed Acts).