Supreme Court Rules That Public Bodies Must Justify Refusals To Disclose Exempted Records Under The FOI Act

Published date25 October 2020
Subject MatterCorporate/Commercial Law, Litigation, Mediation & Arbitration, Contracts and Commercial Law, Trials & Appeals & Compensation
Law FirmArthur Cox
AuthorMr Colin Rooney, Ciara Anderson and Caoimhe Stafford

On 25 September 2020, the Supreme Court ruled in two separate judgments that where a public body decides not to disclose certain records (on the basis of an exemption under the Freedom of Information Act 2014 (the "Act")), the reasons for the decision must be fully explained, and the public body must be in a position to justify why the public interest is not better served by the release of the records.

The Cases

The two cases involved similar sets of facts. Both cases involved applications for disclosure of certain records, which were opposed by the public bodies in question. In both situations, the Information Commissioner granted those applications, but had their decision reversed by the Court. The Information Commissioner is now required to carry out fresh reviews of the applications in view of the Supreme Court's judgments.

In the Enet Case (Minister for Communications, Energy and Natural Resources v the Information Commissioner [2020] IESC 57 [59]), journalist Gavin Sheridan (and RTÉ) had sought a copy of a contract between the Department for Communications ("DfC") and e-Nasc Éireann Teoranta to manage the State's fibre-optic broadband network In this case, the DfC's refusal was based on two exemptions commercial sensitivity and confidentiality. The DfC claimed it had a duty of confidence to the private interests of e-Nasc Éireann Teoranta, and that releasing the underlying contract would undermine the company's ability to act on behalf of the State in a competitive environment.

In the UCC Case (University College Cork v the Information Commissioner [2020] IESC 57 [58]), RTÉ had sought details of a ?100 million loan from the European Investment Bank ("EIB") to University College Cork ("UCC"). UCC refused to disclose these records on the basis of an exemption due to the commercial sensitivity of the information. UCC claimed that disclosing details of this loan could result in a financial loss to the EIB, and could compromise UCC's ability to secure finance in future.

The Enet Decision

The Enet Case focused on the necessary justification of a decision to refuse disclosure (under section 22 of the Act), and the public interest "balancing test" (under sections 35 and 36 of the Act). Ms Justice Marie Baker concluded that the Information Commissioner was correct in stating that public bodies are required to justify a refusal to disclose their records (under sections 35(3) and 36(3) of the Act). However, she held that the Information Commissioner was...

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