Two landmark freedom of information requests by journalists will now be revisited following the Supreme Court’s ruling that public bodies must justify their refusal to disclose confidential or “commercially sensitive” documents under the Freedom of Information Act 2014.
The first case involved an information request taken by journalist Gavin Sheridan regarding a contract entered into by the Department of Communications, Energy and Natural Resources and E-Nasc Teoranta (Enet). Enet was contracted to operate the wholesale business of providing retail telecom operators with access to Metropolitan Area Networks (MANs). MANs is used to provide telephone and broadband services to customers on commercial terms.
His request was refused because the contract was considered “particularly commercially sensitive”; a justification recognised under section 36 of the 2014 Act. The head body refused disclosure of the contract because it considered that the release could “prejudice” Enet and result in its financial loss.
Following a back and forth between the journalist and the Commissioner, the Commissioner decided to release a part of contract while withholding certain schedules. The Minister appealed to the High Court pursuant to section 24(1)(a) of the 2014 Act.
The High Court ruled that the refusal to disclose records required justification. The Court held that it was clear from the Commissioner’s decision that all arguments in support of non-disclosure were explicitly engaged with and discounted. The Court was not satisfied that the Minister produced enough evidence to demonstrate that disclosure would undermine Enet’s business. The Court found that the Commission had acted within its discretion and the disclosure was in the public interest.
The Court of Appeal, however, overturned the High Court’s ruling. The Court found that the Commissioner had erred in looking for “exceptional circumstances” to the right to refuse disclosure of commercially sensitive documents as contained in section 36 of the 2014 Act. The Court was satisfied that the Minister made its concerns known in that disclosure would lead to costs and prices being made public and in turn damage Enet’s ability to operate competitively.
The Supreme Court ruled that a public body’s finding that its records are exempt from disclosure under the Act does not automatically mean they cannot be disclosed. Such a decision must be justified by reasons. The onus falls on the head body to explain why the public interest does not justify release of the document.
In coming to that finding, the Court regarded the decision of Mr. Justice Frank Clark in F.P. v Information Commissionerwhere he opined that the right to refusal must be “interpreted restrictively and applied sparingly” in order to avoid the right becoming the rule as opposed to the exception.
The second case to be re-opened involved an information request taken by RTÉ. RTÉ sought details of a 100 million loan that University College Cork received from the European Investment Bank. Disclosure was denied as the contents were “commercially sensitive”.
The Supreme Court stated that it was not sufficient “for an FOI body to identify the records and merely assert that they could prejudice the competitive position of a person. An 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.”
The Supreme Court allowed both appeals, and remitted both matters to the Information Commissioner.