The Supreme Court, in Kelly v The Information Commissioner [2016] IESCDET 23, has granted Mr Kelly leave to appeal from the decision of the Court of Appeal delivered on 30 November 2015, that that there is no statutory right of appeal against a discontinuance of a review by the Information Commissioner (IC).

The IC having commenced a review under section 34 of the Freedom of Information (FOI) Act 1997, discontinued the review under section 34(9)(a)(i) on the grounds that it was vexatious.  Mr Kelly submits that he is entitled to appeal that decision under section 42(1) of the FOI Act 1997 to the High Court. 

Section 42(1) of the FOI Act 1997 (as replaced by section 24(1) of the FOI Act 2014) provides that a party to a review or any other person affected by the decision of the IC "following such a review" may appeal to the High Court on a point of law from the decision.

As we previously reported, the Court of Appeal held that a statutory right of appeal only lies "following such a review".  As there had been no review in this case, the court held that there was no statutory right of appeal.  The only mode of challenging the discontinuance was by way of judicial review.

Determination of Supreme Court 
On 12 February 2016, the Supreme Court, as a matter of general public importance, granted Mr Kelly leave to appeal on the following issues:

(i) Did an appeal lie to the High Court under section 42(1) of the FOI Act 1997 in respect of the decision of the IC to discontinue the review pursuant to section 34(9)(a)(i)? and

(ii) Does a similar issue arise under the Freedom of Information Act 2014?

The Supreme Court considered that this appeal should follow on, and be heard by the same formation of the Court, as the appeal in Nowak v The Data Protection Commissioner [2015] IESCDET 49 (see our report on that case here) which contains similar issues under the Data Protection Acts 1988-2003.