knowledge 12 October 2020 |

Supreme Court says Public Bodies must Justify Refusal under Freedom of Information Act

The decision

Ms Justice Baker, speaking for the Court, stated that public bodies must provide substantive reasons for refusing disclosure, including an explanation as to why the public interest does not warrant the release of the document(s) requested, even if those records fell within one of the statutory exemptions in the 2014 Act.  These decisions are significant for public bodies and show that if it makes a decision to withhold information pursuant to one of the statutory exemptions, such as confidentiality or commercial sensitivity, that decision must be carefully considered and the response must be well crafted to comply with the public body’s obligations under the 2014 Act. 

Exemptions from disclosure under the Freedom of Information Act 2014

Under the 2014 Act, “every individual” has the right to request access to documents held by public bodies. Generally speaking, public bodies are required to comply with these requests, reflecting the statutory presumption of disclosure under the 2014 Act.  Despite this default position, Part 4 of the 2014 Act provides for a number of exemptions to disclosure, including the right to refuse an FOI request where the information sought is (i) confidential; or (ii) commercially sensitive.  Commercially sensitive information is defined under section 36(1) and includes:

• (a) trade secrets;
• (b) information which could prejudice the competitive position of a party or which could
         reasonably cause a party to incur a material financial loss or gain; and
• (c) information the disclosure of which could prejudice the conduct or outcome of
         contractual or other negotiations.

Recent cases

The first case to arise before the Supreme Court involved a request for a copy of a contract entered into between the Department of Communications (the “Department”) and E-Nasc Éireann Teoranta (“ENET”).  This contract conferred ENET with exclusive rights to manage the State’s fibre-optic broadband network.  The Department refused to release the records on the ground that they contained information considered to be commercially sensitive under the 2014 Act.  The Department’s principal argument against disclosure was that releasing the records “could prejudice” ENET and “might result in a material financial loss” to it.[1]

In the second case, RTÉ sought details of a €100 million loan that University College Cork (“UCC”) had received from the European Investment Bank (“EIB”).  UCC similarly refused to disclose any information about the loan, citing commercial sensitivity.  UCC claimed that disclosing the particulars of the loan could result in the EIB sustaining financial losses and could damage UCC’s ability to avail of additional credit facilities in the future.[2]

The Information Commissioner (the “Commissioner”) overruled both decisions and ordered disclosure of the information requested.  The Commissioner asserted that the Department and UCC were required to justify a refusal to disclose under the 2014 Act and that non-disclosure could only be justified in “exceptional” circumstances.  The Commissioner was of the opinion that the evidence presented by the Department and UCC did not meet this standard.  The Department and UCC had been successful in the courts below: the Department in the Court of Appeal, UCC in the High Court. The Information Commissioner appealed both to the Supreme Court.

Findings of the Supreme Court

In two comprehensive judgments, the Supreme Court held that while public bodies are entitled to refuse to disclose confidential and/or commercially sensitive information under the 2014 Act, any such decision must be adequately justified.  When withholding commercially sensitive information, the Court determined that it would never be sufficient for a public body to “merely assert” that the information sought was commercially sensitive and refuse to release it on this basis.  This, the Court held, would be incompatible with the presumption favouring disclosure within the FOI regime.

Ms Justice Baker determined that public bodies were required to:

• (a) identify the records requested;
• (b) assess whether or not they contain any commercially sensitive information;
• (c) determine whether the public interest justifies disclosure; and
• (d) if a decision is made to refuse disclosure, provide the requesting party with a
         comprehensive explanation for this refusal.

On the facts presented, the Court concluded that the Department and UCC were obliged to justify their refusals to disclose commercially sensitive information.  However, the Court found that the Commissioner had set an unduly high standard by requiring “exceptional” justifying circumstances.

In the ENET decision the Court also held that section 35(2) of the 2014 Act (which carves out certain types of confidential information from the statutory exemption) applies to internal information of public bodies generated from any of its functions, and is not limited to internal information generated by its FOI function.  The Court was clear in its view that an FOI body cannot generate confidentiality by its own actions where there is no contractual or statutory basis to do so.  In other words, internal documentation prepared by a public body, or on its behalf, cannot be withheld unless it can be demonstrated that  the confidentiality of the information in the documentation arises by way of an agreement, or statute, or otherwise by law.  

In its second judgment, the Court determined that the trial judge had erred by allowing UCC to rely on a report which it had failed to expressly endorse during the Commissioner’s original assessment.  Ms Justice Baker definitively asserted that an “appeal is confined to a point already before the Commissioner”.[3]  As a result of these findings, both matters were remitted to the Commissioner for re-evaluation.

Concluding remarks

It is crucial that public bodies are of aware of their disclosure obligations under the 2014 Act in light of these new decisions of the Supreme Court.  In particular, public bodies should review how they deal with FOI requests for information which they deem confidential and/or commercially sensitive. In those circumstances, the public body needs to consider carefully whether the public interest justifies disclosure and, if not, ensure that the response includes a thorough explanation as to why the public body is refusing the request for disclosure.  In addition, private entities to whom the requested information relates should, if appropriate, explain to public bodies how their competitive position will be adversely affected by disclosure.  This will allow public bodies to make a fully informed assessment. 

Also contributed to by Sean Kehoe