‘The Freedom of Information Act is dead’: High Court rules against Information Commissioner in UCC finding

A DECISION BY the Information Commissioner ordering University College Cork (UCC) to release records under Freedom of Information has been overturned by the High Court.

The judgement was made after UCC challenged a decision by the Commissioner in 2018 that the university must disclose details of a loan provided to it by the European Investment Bank (EIB) following an FOI request by RTÉ.

The decision comes after the university refused to provide RTÉ access to the records in 2017, and the broadcaster subsequently made a successful appeal to the Commissioner to access the records.

Mr Justice Garrett Simons found that the Commissioner was wrong to take a “presumption in favour of disclosure” as the starting point of RTÉ’s appeal.

He said that such an approach required UCC to justify why it had refused access to the records, referring to a previous finding against the Information Commissioner in the Court of Appeal.

However, politicians, legal experts and transparency campaigners have raised concerns about the implications that the judge’s finding has for the application of the Act.

Sinn Féin TD Pearse Doherty said that the judgement was contrary to the purpose of Freedom of Information laws, suggesting it made public bodies free to refuse FOI requests without challenge.

“Freedom of Information is crucial for any functioning democracy,” he told TheJournal.ie.

“Information obtained through FOI by journalists in the past has served the public interest well in shining a light on serious social and political affairs.

“There can be no dilution of this in the future. Without the circulation of information regarding public bodies, good and transparent governance would be impossible.”

Doherty also called on the Information Commissioner to appeal the decision, and said his party would introduce legislation to address the judge’s finding if necessary.

‘Competitive position’

The judgement came about after UCC refused an FOI request by RTÉ for access to details of a loan provided to it by the European Investment Bank.

The request was made in January 2017 by a journalist with RTÉ Investigates as part of a probe into spending and issues of corporate governance at universities in Ireland.

However, citing Section 36 of the Act, a decision maker for UCC told RTÉ in April 2017 that granting access to the records would have “prejudiced the competitive position” of a private third party – in this case the EIB – in how it went about its business.

The decision maker suggested that the disclosure of details relating to the loan could have resulted in financial loss to the EIB, and would have decreased the willingness of private firms like the EIB to partner with UCC in future.

They also noted that an exemption under Section 36 could not be used if the public interest was better served by granting the records.

However, the decision maker said that the public interest was, on balance, not better served by exempting the records.

RTÉ then requested an internal review – or appeal – of the initial decision, which was upheld by the President of UCC on 27 April, 2017.

Not consulted

The broadcaster subsequently appealed to the Information Commissioner to review UCC’s decision in June 2017.

As part of its appeal to the Commissioner, RTÉ argued that UCC had not consulted the EIB in relation to the records, and that the EIB was not a typical third party.

Instead, RTÉ suggested that the EIB was a public body that operated under the Transparency Directive and had its own transparency policy, and included sections of the policy in its appeal to argue its case.

RTÉ also claimed that EIB loans were not commercial loans, and that the EIB was not in competition with retail banks, suggesting that the information could therefore not be commercially sensitive.

As part of its investigation, the Office of the Information Commissioner wrote to UCC to ask how the university had decided against disclosing the records under Section 36(1)(b) of the Act, which offers an exemption if doing so would result in financial loss to a body.

It asked if the EIB had consented to the release of records, how the competitive position of the EIB could be prejudiced by the disclosure of records, and what public interest factors the university had considered in its decision.

Competitive environment

In its response, UCC provided a reply from the EIB saying it agreed that the information requested was commercially sensitive and preferred not to have it released.

The university also argued that the release of information would “considerably compromise” the EIB in its negotiations with other universities in Ireland and across Europe, and have a negative impact on UCC in future loan requests it made to the bank.

In considering the balance of public interest, UCC also claimed that because it operated in a competitive environment for funding, the disclosure of the records would be commercially damaging.

“It was never intended that the FOI legislation would be used in such a way as to be a means to support the commercial interest of privately owned media companies, many of whom themselves provide educational services,” the university wrote.

However, while the Commissioner accepted that UCC had outlined a potential harm from the general release of financial records, it claimed the university did not explain how such harm might arise in relation to the records specifically requested by RTÉ.

The Commissioner also noted that while the EIB had an opportunity to explain why the information should be exempt and to identify the potential harm that could arise from its release, it had not done so.

“In my view, there is nothing before me to demonstrate how the EIB’s competitive position would be prejudiced or how it could incur a material loss by release of the information concerned,” he wrote.

In March 2018, Information Commissioner Peter Tyndall found that UCC was justified in withholding some of the information held in the records under Section 37 of the Act, which related to the disclosure of personal information.

However, he directed the release of four records sought by RTÉ to the university, a decision which UCC subsequently appealed to the High Court.

‘Rubber stamping exercise’

Today, Mr Justice Garrett Simons ruled in favour of UCC in its appeal against the Commissioner’s decision.

He cited a recent ruling in the Court of Appeal brought against the Commissioner by the Minister for Communications Energy and Natural Resources.

In that case, journalist Gavin Sheridan had sought the release of information relating to a contract issued by the Minister for the management and operation fibre optic networks across Ireland.

Sheridan’s request for information was rejected by the Minister, and he subsequently made a successful appeal to the Information Commissioner.

However, Mr Justice George Birmingham later found that the Commissioner had approached Sheridan’s appeal incorrectly, because he had presumed the records held by the Minister required disclosure.

Today, the judge dismissed a suggestion by the Information Commissioner that this ruling meant UCC’s approach would reduce his role to “a rubber-stamping exercise”. 

“With respect, I think that this submission overstates the position,” he said.

“The essence… confirmed by the Court of Appeal in ENET, is that where a record comes within the terms of one of the statutory exemptions, then no additional justification for non-disclosure is required to be demonstrated.”

He found that the information redacted by UCC was “self-evidently commercially sensitive”, and said that the Information Commissioner expected UCC to demonstrate additional justification for not disclosing the records.

The judge also found that the Commissioner had misinterpreted the extent to which disclosing the records would have put UCC at a competitive disadvantage, and found in the university’s favour.

Wider implications

However, campaigners and civil liberties groups expressed concern at today’s findings, with Sheridan tweeting that it put the Freedom of Information Act “in serious jeopardy”.

“Presumption is no longer in favour of disclosure,” he said. “The Act is now – and I use this word carefully – dead.”

Fred Logue, a solicitor specialising in information law, said the ruling undermined a “universal principle” of FOI laws around the world, where the onus was on public bodies to prove why information should be refused.

He also claimed that the ruling had wider implications for the application of the Act, suggesting it would not just affect the rejection of disclosures for reasons of commercial sensitivity.

“It’ll apply to confidential information, deliberations of public bodies and how public bodies are run,” he told TheJournal.ie.

Elizabeth Farries, surveillance and human rights programme manager with the Irish Council for Civil Liberties, also said the decision to remove the presumption of disclosure from public bodies threatened the access to information in Ireland “on a wide scale”.

“Freedom of Information is essential if civil liberties groups like the ICCL are to effectively monitor  if public bodies are operating in lawful ways,” she said.

“Information about their mandates, policies, procedures and actions must be treated as essential matters of public interest.”