The Supreme Court has ruled that a person cannot appeal to the High Court under the Freedom of Information Acts against the Information Commissioner’s decision to discontinue a review as frivolous or vexatious. The Court held that the same limit applies under both the 1997 and 2014 Acts.
The appeal arose after Patrick Kelly made seven FOI applications to University College Dublin over 12 months from April 2012. The requests concerned access to records, correction of personal information and information about acts affecting him. UCD refused the applications at first instance and internal review.
The Information Commissioner began reviewing the decisions, then discontinued all seven reviews in September 2013. The Commissioner considered the applications vexatious, citing their connection to Mr Kelly’s long-running dispute with UCD and a pattern of conduct she considered an abuse of the FOI process. Those were the Commissioner’s reasons; the Supreme Court was not asked to decide whether the requests were properly treated as vexatious.
Mr Kelly appealed to the High Court under section 42 of the 1997 Act. The High Court held it had no jurisdiction to hear that statutory appeal. The Court of Appeal dismissed his appeal, and the Supreme Court granted leave to consider whether a statutory appeal lay under the 1997 Act and whether the same issue arose under the 2014 Act.
In a judgment delivered by Justice William McKechnie, the Supreme Court concluded that section 42 permits an appeal on a point of law from a Commissioner’s decision following the review process required for a substantive decision to affirm, vary or annul a public body’s decision. A decision to discontinue a review under section 34(9) is a different kind of decision and does not fall within that appeal route. The Court found no relevant difference in the 2014 Act’s corresponding provisions.
The Court answered both certified questions against Mr Kelly: no statutory appeal lay to the High Court from the discontinuance decisions under either Act. It said a person aggrieved by such a decision may still seek judicial review, which is subject to obtaining leave and the court’s discretion. The judgment decided only the availability of the statutory appeal; it did not determine the merits of the underlying FOI requests.