The High Court has allowed an appeal over access to daily trading-volume records to continue, despite the Information Commissioner conceding that one ground for refusing access was based on a factual error.
In a judgment delivered on 1 November 2023, Mr Justice Garrett Simons ruled that the appellant could pursue his challenge to a separate ground which the Commissioner had relied on to uphold the refusal. The court did not decide whether the records should be disclosed.
The appeal concerns a freedom of information request made to the Central Bank of Ireland on 22 November 2022 for daily trading volumes of three listed financial instruments or shares. The Central Bank refused the request. The Commissioner upheld that refusal in a review decision dated 10 May 2023, relying on two grounds.
The Commissioner later accepted that the first ground, under section 42 of the Freedom of Information Act 2014, was erroneous. The review investigator had mistakenly understood that the instruments were regulated by another European regulator, and concluded that a “Supervisory Directive” prohibited disclosure. The Commissioner accepted that disclosure was not prohibited under section 42.
The Commissioner asked the High Court to set aside the review decision and send the matter back to his office for reconsideration. The appellant opposed that course and asked the court to determine the remaining issues, including his challenge to the second ground: that the records contained confidential financial information relating to an individual and a regulated firm.
Mr Justice Simons said the Commissioner had not conceded that second ground and might rely on it again after reconsideration. Because the parties remained in dispute over whether the Commissioner was legally wrong to use it, the appellant was entitled to argue the issue in the current appeal. The judge said repeated appeals over the same request would be undesirable.
The Central Bank had also relied on sections 15(1)(a) and 17(4) of the Act, but the Commissioner had not needed to address those grounds in the original review decision. The judge said those additional grounds could be considered if the appellant succeeded on the confidential-information issue and the matter was then remitted.
The judgment did not resolve the appeal or order disclosure. The proceedings were listed for case management before the judge at 10.45am on 20 November 2023. In the interim, the judge directed that the Central Bank be joined as a notice party.