The High Court dismissed the Minister for Communications, Energy and Natural Resources’ appeal against the Information Commissioner’s decision to release a 2009 concession agreement with E-Nasc Éireann Teoranta, trading as Enet. The agreement covers Enet’s management, maintenance and operation of State-owned metropolitan area networks (MANs).
The case was an appeal on a point of law under section 24(1) of the Freedom of Information Act 2014. The Minister challenged the Commissioner’s decision, communicated on 30 November 2015, to grant access to the agreement following a request by Gavin Sheridan. Schedule 3 to the agreement had been excluded from the Commissioner’s review, and the appeal concerned only the agreement. Enet did not otherwise participate in the appeal, though the Minister filed an affidavit on its behalf.
The Minister had initially indicated that the public interest favoured disclosure unless there were objective reasons against it. After consulting Enet, the Minister refused access, citing confidentiality and commercial sensitivity. Enet argued that disclosure could put it at a disadvantage with competitors and customers, and could harm its business. The Commissioner found that disclosure could prejudice Enet’s competitive position, but decided that the public interest in transparency about the terms for operating a valuable State asset outweighed that concern.
The High Court held that the Commissioner had not erred in applying the statutory presumption that a refusal of access was unjustified unless the public body satisfied the Commissioner that it was justified. The Minister had not objected to that approach during the Commissioner’s review and could not raise the point for the first time on appeal.
On confidentiality, the court held that section 35(2) applied because Enet was a service provider to the public body. The confidentiality exemption in section 35(1) therefore did not arise. The court also said it was common ground that the agreement contained commercially sensitive information, bringing section 36(1) into play. The issue was whether the Commissioner’s public-interest decision under section 36(3) could be set aside on the appeal’s limited legal grounds.
The court concluded that the Minister’s arguments amounted to saying that he had struck the balance correctly and the Commissioner had not. It held that the appeal did not permit the court to revisit that balance and dismissed the appeal. The judgment did not itself order the agreement’s release; it left the Commissioner’s decision undisturbed.