The Supreme Court has sent back to the Information Commissioner a dispute over access to a contract for operating the State-owned Metropolitan Area Networks (MANs), ruling that a refusal to release records must be justified but that the public interest test cannot rest on a general preference for transparency.
The case arose after Gavin Sheridan asked the Department of Communications, Energy and Natural Resources for records including contracts with E-Nasc Éireann Teoranta, trading as enet, which operated the wholesale business providing telecoms operators access to MANs. The Department refused access to the concession agreement, citing duties of confidence and possible commercial harm to enet. The other three categories of records in Sheridan’s request were agreed to be disclosed and were not part of these appeals.
In November 2015, the Information Commissioner directed release of the agreement apart from three schedules, which Sheridan accepted. The Minister appealed. The High Court upheld the Commissioner’s approach, but the Court of Appeal reversed that decision. The Commissioner appealed to the Supreme Court, and the Minister cross-appealed on the interpretation of the confidentiality provision in section 35(2) of the Freedom of Information Act 2014.
In a judgment delivered by Justice Marie Baker on 25 September 2020, the Supreme Court held that the statutory presumption against unjustified refusals applies when the Commissioner reviews records claimed to be exempt under sections 35 and 36. The FOI body must give sufficiently reasoned, record-specific grounds both for applying an exemption and for concluding that the public interest does not favour release.
But the Court said the Commissioner had applied an unduly high bar by referring to “exceptional circumstances” and whether disclosure would “totally undermine” enet’s business. The public interest assessment must weigh interests tied to the particular records and their contents. General openness and transparency alone are not enough, the Court said; a sufficiently specific, cogent and fact-based reason is required to favour disclosure.
The Court also dismissed the Minister’s cross-appeal, holding that section 35(2) restricts the confidentiality exemption for internal information generated by public bodies in the course of their functions. A public body and service provider cannot rely on a confidentiality clause to contract out of the Act, though the provision allows for duties of confidence owed to others on a separate contractual or legal basis.
The Supreme Court did not itself decide whether the concession agreement should be released. It remitted the matter to the Commissioner to conduct a fresh review in light of its conclusions.