The Minister for Communications, Energy and Natural Resources -vThe Information Commissioner, Gavin Sheridan and e-Nasc Eireann Teoranta  IECA 68
A recent Court of Appeal case confirms the protection for successful tenderers entering into public-private partnerships under section 35 (dealing with information obtained in confidence) and section 36 (commercially sensitive information) of the Freedom of Information Act 2014.
A journalist, Gavin Sheridan, sought records pertaining to a concession agreement between E-Nasc Eireann Teoranta (Enet) and the Minister for Communications concerning the State’s fibre optic cable network. The Minister declined the request on confidentiality and commercial sensitivity grounds under sections 35(1)(b) and 36(1) of the Freedom of Information Act 2014.
The Information Commissioner directed the Minister to release the contract with Enet, holding that; “in my view, it is in the public interest to disclose the terms and conditions under which Enet has agreed to manage, maintain and operate this valuable State asset… in my view, Enet was the successful bidder in a tender process for the use of a State-owned asset which generates revenue and therefore there should be transparency around this transaction…”.
The Commissioner held that the Minister did not show that there was a “reasonable expectation” of material financial loss accruing to Enet and accordingly, section 36(1)(b) did not apply. Section 36(1)(b) did apply in circumstances where Enet’s competitive interests were prejudiced. However, in the public interest, the disclosure was justified and only in exceptional circumstances could the public interest be set aside.
The Minister appealed to the High Court, arguing that the Commissioner: (i) substituted his own test and criteria for that in section 36(2); (ii) placed an onus of proof on the Minister pursuant to section 22(12)(b) where in this case the section did not apply as the information was subject to an exemption; and (iii) misinterpreted and misapplied the public interest test in sections 23 and 35.
The High Court dismissed the Minister’s appeal and the case was brought to the Court of Appeal on four distinct issues.
First, the Minister submitted that the High Court proceeded as if it were dealing with a judicial review, as opposed to an issue of statutory interpretation. The Court of Appeal held that the High Court did not apply judicial review principles, nor did it defer to the Commissioner and dismissed this ground of appeal.
The second area of appeal identified by the Court of Appeal was that the Commissioner incorrectly imposed an onus of proof on the Minister pursuant to section 22(12)(b) to satisfy the Commissioner that the decision to refuse a Freedom of Information request is justified. The Minister submitted that the case of The Governors of the Hospital for the Relief of Poor Lying-In Women -v- the Information Commissioner  1 IR 1 (the Rotunda case) supported his arguments that the right to access public documents in section 11 is not absolute and should not be construed as applying to exempt records. Birmingham P highlighted the significance of the remarks by Macken J in Rotunda and found that the Commissioner made his decision on an incorrect legal basis and that records exempt by statute were not presumed to require disclosure.
The Minister made his third submission in relation to the tests applied by the Commissioner. He argued first that the Commissioner erred by requiring that exceptional circumstances were required to justify non-disclosure under section 36 as this was never the test envisaged by the legislator. Birmingham P held that he was not convinced on this submission alone as the Commissioner was referring to the absence of exceptional circumstances rather than a positive duty upon the Minister to demonstrate specific circumstances that justify the non-disclosure. However, he found that the Commissioner erred in looking for exceptional circumstances if the exemption was not to be overridden. The Court were more convinced by the second submission of the Minister in this regard that the Commissioner was incorrect to hold that the Minister must show that the disclosure would “totally undermine” Enet’s business and held that the requirement of totally undermining was an error in law.
Finally, the Minister contended that the Commissioner misread section 35(2) as disapplying section 35(1) as in this instance neither the Minister nor any agent of the Minister prepared a record in the course of his or her functions. It was submitted that Enet was not a services provider performing the functions of a head. Birmingham P found force in the arguments of both the Minister and Commissioner. The Commissioner contended that permitting the Minister’s interpretation of the section would place service providers prima facie outside the scope of the Act. While the Minister argued that, the Commissioner’s position would mean that there could never be a duty of confidence between a public body and any service provider with which it enters into contract. The Court found that the Commissioner’s interpretation more closely reflects the ordinary language of the subsection and that there is nothing in section 35(2) about service providers and others acting qua head.
While acknowledging the importance of transparency and the public’s right of access to public documents, this judgement recognises the prejudice that may be caused to a business by the disclosure of commercially sensitive data submitted in confidence to the State. Exempt records are not presumed to require disclosure and exceptional circumstances are not required to justify non-disclosure. In addition, there is no requirement that disclosure must “totally undermine” an entity’s business.