In two recent cases, Ms Justice Baker of the Supreme Court, held that public bodies are required to provide substantive reasons for any refusal to disclose certain confidential or commercially sensitive information under the Freedom of Information Act 2014 (“the Act”). These decisions are critical to the application of the Act as it overturns the previous Court of Appeal decision, which held that the presumption of disclosure did not apply to exempted records.
These judgments will have a significant impact on how public bodies deal with requests under the Act and also private entities that engage with public bodies that are subject to the Act.
1. 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 in receipt of State funding. The Act provides various statutory rights, such as a legal right for members of the public to have official information, which relates to them, amended where it is incomplete, incorrect or misleading. Part 4 of the Act provides for a number of exceptions whereby bodies are exempt from disclosing information to members of the public, for example where non-disclosure is in the interests of law enforcement and public safety or where the information concerned is confidential and commercially sensitive.
2. The Information Commissioner, the Department of Communications and E-Nasc Éireann Teoranta
One of the recent Supreme Court cases involves the Department of Communications and E-Nasc Éireann Teoranta (“eNet”). In this case, a journalist, Gavin Sheridan, sought a copy of a contract between the Department for Communications and eNet, to manage the State's fibre-optic broadband network. The Department of Communications refused to disclose the contract on the grounds of “commercial sensitivity”, provided for under Part 4 of the Act.
The Information Commissioner directed that the contract be disclosed and the Minister for Communications appealed this decision to the High Court. Mr Justice Seamus Noonan upheld the decision of the Information Commissioner and the Minister for Communications then appealed the decision to the Court of Appeal, which reversed the decision of the High Court. The judges held that the High Court had erred in concluding that a refusal to disclose records required justification. The Information Commissioner then appealed to the Supreme Court.
Ms Justice Baker agreed with the Information Commissioner that the public body must justify a refusal to disclose information. Her judgment focused on a balancing test as to whether the public interest requires disclosure. She maintained that a public body's finding that its records are exempt from disclosure under the Act does not automatically mean they cannot be disclosed. The head of the Freedom of Information (“FOI”) body must provide reasons for why the public interest does not justify disclosure. In addition, Ms Justice Baker maintained that there is no requirement for the justifying reasons not to disclose to amount to “exceptional circumstances”.
3. University College Cork and Raidió Teilifís Éireann
The other Supreme Court case involved University College Cork and Raidió Teilifís Éireann (“RTE”). In this case, RTE sought details of a €100 million loan that the university received from the European Investment Bank (“EIB”). Under part 4 of the Act the university refused to disclose the details of the loan on the grounds that the information was exempt from disclosure due to “commercial sensitivity”. The university also refused to disclose the information in the belief that doing so might result in financial loss to EIB, and that going forward it might compromise the university's position to apply for such loans.
Ms Justice Baker held that the test as to whether information is exempt from disclosure due to “commercial sensitivity” is a two-limb test:
(i) The first limb of the test relates to information whose disclosure could reasonably be expected to result in a material financial loss or gain to the person to whom the information relates.
(ii) The second limb relates to information whose disclosure could prejudice the competitive position of the body to whom the information relates in his or her profession or business or otherwise in his or her occupation.
Ms Justice Baker maintained that it was not sufficient “for a FOI body to identify the records and merely assert that they could prejudice the competitive position of a person. A FOI body must also have a reasonable basis for that position. A bare assertion will never do, albeit it may be relatively easy to meet the low test in the second limb.”
4. Judgments will have implications for the application of the Freedom of Information Act 2014
These recent Supreme Court judgments have significant implications for public bodies (and those private entities that engage with such public bodies) in respect of their obligations under the Act.
The judgments have highlighted that a finding by a public body that records are exempt from disclosure under the Act does not automatically mean the records cannot be disclosed. It is imperative that such a decision by a public body is justified, which includes providing a detailed explanation as to why the public body may be refusing a request under the Act on the basis they deem such records confidential and/or commercially sensitive. In addition to this, the public body is required to carefully consider whether the public interest merits its disclosure.
Private entities will also now be required to ensure that they provide, where relevant, detailed explanations to public bodies as to how any specific record relating to that entity could be adversely impacted by its disclosure.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
