The High Court has set aside the Information Commissioner’s decision to order release of records about University College Cork’s €100 million European Investment Bank loan, finding legal errors in the treatment of the commercial-sensitivity exemption. The matter was remitted to the Commissioner for reconsideration; the court did not decide that the disputed information must be disclosed or finally determine the public-interest balance.
RTÉ requested the records in January 2017 under the Freedom of Information Act 2014. They included the finance contract and internal UCC documents containing information about borrowings, projected finances and the proposed loan. UCC initially refused access in full. During the Commissioner’s review, the EIB supplied a redacted version of the contract and said it did not object to releasing that version.
The Commissioner varied UCC’s refusal, finding that section 36(1)(b) did not justify withholding most of the records, while accepting that third-party company information was commercially sensitive and some personal information was exempt. The Commissioner directed release of records 1 to 4 with the relevant information withheld.
UCC appealed to the High Court on a point of law. It argued that the Commissioner had wrongly treated the law as placing the burden on UCC to justify refusal and had not properly assessed how disclosure could prejudice UCC’s competitive position. The judgment records UCC’s submissions that disclosure could affect its future financing negotiations, capital costs and dealings with the EIB and other lenders.
Mr Justice Garrett Simons held that the Commissioner had applied the statutory presumption in section 22(12)(b) on an incorrect basis. He also found errors in interpreting section 36(1)(b), which covers information that could cause material financial loss or gain, or could prejudice a person’s competitive position. The judgment says these are separate grounds and that the competitive-prejudice threshold is low. In the court’s view, the Commissioner focused too narrowly on potential harm to the EIB and did not adequately consider the effect on UCC of disclosing details such as interest rates, existing borrowings and financial covenants.
The court concluded that the errors were material and set aside the Commissioner’s decision. Because the Commissioner had found the exemption did not apply to most of the disputed material, the separate public-interest test under section 36(3) had not been considered for it. The Commissioner must now reconsider the matter in light of the court’s findings. The judgment does not itself order disclosure of the disputed information.