Background

On Friday, 25 September 2020, the Supreme Court delivered judgment in two appeals (the Appeals)1 which considered the statutory presumption in favour of disclosure in the context of a request made pursuant to the Freedom of Information Act 2014 (the Act) vis-a-vis confidential or commercially sensitive documents.

The Supreme Court's judgments, involving requests for information under the Act made to the Minister for Communications, Energy and Natural Resources and to University College Cork, have the effect of overturning the decision of the Court of Appeal in Minister for Communications, Energy and Natural Resources v Information Commissioner 2 (the Court of Appeal Judgment) and a subsequent High Court judgment that was bound by the Court of Appeal Judgment.

In the Court of Appeal Judgment given in 2019, the Court of Appeal had found that the Information Commissioner (the Commissioner) had erred in assessing a request to disclose commercially sensitive documents from the premise that there was a statutory presumption favouring disclosure.

The Commissioner noted in his 2019 Annual Report that the Court of Appeal Judgment had had "a profound effect on the way (his) Office processes reviews and, indeed, on the way the FOI regime operates in Ireland…….the effect of the (Court of Appeal Judgment) is that the position (his) Office should adopt in relation to (Section 22(12)(b) of the Act) is now unclear)".

The outcome of the Appeals is likely to have a significant effect on the Commissioner's reviews of decisions by FOI Bodies (as defined below). It may also result in an increased number of challenges to decisions not to provide documents on the basis of confidentiality or commercial sensitivity.

Freedom of Information Act 2014

The Act consolidated and modernised the law relating to access by members of the public to records of public bodies and non-public bodies. Under the Act, a person can seek disclosure of a record held by a public body or a body which receives amounts of public funding (an FOI Body). Any such request (an FOI Request), is made to the "head" of the relevant FOI Body.

The Commissioner is an independent expert with power to review any refusal, whether full or partial, of an FOI Request. The decision of the Commissioner can be appealed to the High Court on a point of law and an appeal lies against a finding of fact in certain limited circumstances. Section 22(12) of the Act creates a statutory presumption in favour of disclosure. Section 22(12)(b) states that "a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified".

Sections 35 and 36 of the Act provide for the refusal of disclosure of information obtained in confidence and the refusal of commercially sensitive information, respectively, in certain circumstances. Both sections contain a balancing exercise whereby, if the head of the FOI Body (at first instance), or the Commissioner (on review), are satisfied that the requested documents comprise confidential information or commercially sensitive information by reference to the thresholds set out in the Act, then the FOI Body or the Commissioner must weigh the public interest in disclosing the requested documents as against the public interest in keeping confidential the information within the documents. It is only if, in carrying out this balancing exercise, the public interest in keeping the information confidential is greater than the public interest in disclosing the documents, that the documents are considered exempt from disclosure.

The Appeals

The Commissioner argued that notwithstanding that a document has been found to be a confidential document or a document containing commercially sensitive information, that a head of an FOI Body or the Commissioner (as applicable) are required to carry out the balancing exercise before making an assessment as to whether or not the document is exempt from disclosure in order to justify any refusal to disclose. In support of this contention, the Commissioner argued that Section 22(12)(b) of the Act applied to confidential or commercially sensitive documents.

In the 2019 Court of Appeal Judgment, the Court of Appeal had found that once a record was found to be confidential or commercially sensitive by reference to the thresholds set out in Sections 35 and 36 of the Act, that the presumption in favour of disclosure set out in Section 22(12)(b) plays no part.

The Minister argued that the Court of Appeal Judgment represented the correct interpretation of the Act and that once a head of an FOI Body or the Commissioner had determined that a document was confidential or contained commercially sensitive information, then this meant that no balancing exercise needed to be carried out and no additional justification need be provided for a refusal to disclose. The Supreme Court carried out a detailed analysis of the Act and relevant prior jurisprudence and agreed with the Commissioner that the presumption created by Section 22(12)(b) applied to confidential or commercially sensitive documents, such that a refusal to disclose same had to be justified by reference to the balancing of interests test.

The Supreme Court noted that the general public interest in favour of disclosure was not to be taken into consideration in assessing the competing public interests in favour of, and against disclosure, vis-à-vis commercially sensitive documents. The Court noted that the public interest in favour of disclosure, that was to be considered, was one that had to be derived from the content of the particular documents in question. In this regard, the Court gave the extreme example where the disclosure of the requested documents would evidence corruption. The Court noted that it will not always be the case that the public interest in favour of disclosure will outweigh the public interest in refusing to disclose commercially sensitive information. Notwithstanding this, it will fall to the head of the FOI Body, or to the Commissioner to justify any such refusal. It will not suffice for either body to assert that they are refusing to disclose documents because of their commercial sensitivity, without any further justification.

The Court also found that the Commissioner had erred in imposing an unduly high bar by requiring evidence of justifying reasons amounting to "exceptional circumstances" to establish a lawful refusal to disclose.

Both cases were remitted to the Commissioner for review in light of the judgments in the Appeals.

Commentary

The judgments in the Appeals are a welcome clarification of the operation of the Act as it applies to confidential information and commercially sensitive information.

The judgments in the Appeals should have the effect of bringing greater transparency to any refusal to produce documents on the basis of confidentiality or commercial sensitivity and should ensure that those minded to challenge any such refusal, do so from a more informed position.