The High Court has dismissed an appeal by the Director of Public Prosecutions over access to correspondence about fees payable to counsel, affirming the Information Commissioner’s decision on the scope of a Freedom of Information Act exclusion.
The records were held by the Department of Public Expenditure and Reform and concerned requests by the DPP for increased legal fees and the Department’s responses. A journalist with the Sunday Times had requested the correspondence. The Department refused access, and the requester appealed to the Information Commissioner.
The Commissioner found that letters sent by the DPP were excluded because they had been created by the DPP. But the Department’s replies were not covered by the exclusion: although the DPP held duplicates, the Department held its own copies. The DPP appealed to the High Court on a point of law, arguing that the Department’s copies should be treated as records held by the DPP.
Mr Justice Garrett Simons ruled that each body held a separate record, even where the documents contained identical information. He said the Department was lawfully in possession of its copies for its own functions and could not be said to be disclosing a record held by the DPP. The statutory definition of “record” included copies, but that did not make a copy the same record as the original for the purposes of the exclusion.
The court held that the DPP’s exclusion could not be used by another public body to withhold its own duplicate. The Department could refuse disclosure only if another exclusion or exemption applied. The judge noted that the Act includes other protections for sensitive information, including material that could affect prosecutions or be covered by legal professional privilege.
The court did not decide the separate question of how the exclusion for records “created” by the DPP should apply to copies. The Commissioner’s finding that DPP-originated letters were covered on that basis was not challenged in the appeal. The judge said the meaning of “created” could require reconsideration in an appropriate case.
The appeal was dismissed and the Commissioner’s decision affirmed. The judge gave a provisional view that the Commissioner should recover legal costs from the DPP. If the DPP wished to argue for a different costs order, written submissions were due within seven days, with final orders listed for 20 December 2021.