The High Court has refused Michael McKevitt’s appeal against a ministerial certificate that classified records concerning telephone interception as exempt from release under the Freedom of Information Act.
Mr Justice McDermott delivered the judgment on 6 March 2015. He said the court’s role under section 42 was limited to deciding an appeal on a point of law, not reconsidering the merits of the Minister’s decision. The appeal sought to set aside a certificate issued under section 25 of the 1997 Act.
McKevitt’s solicitors had requested records including interception authorisations, transcripts or audio recordings, call logs and intelligence reports concerning him or his household. The request identified August 1999 to April 2001 as the period of greatest immediate concern. It followed the Smithwick Tribunal’s report, which discussed telephone surveillance of McKevitt in or about 1990 and transcripts reviewed by the tribunal.
The Minister’s certificate relied on sections 23 and 24 of the Act, covering specified law-enforcement and security grounds. McKevitt argued that the certificate was too vague, that disclosure could not reasonably be expected to harm the listed public interests, and that the State had waived confidentiality by allowing references to older records in the tribunal proceedings.
The judge rejected the argument that the Minister had to explain in the certificate why each category of requested records fell within the exemptions. He held that the Act did not require further detail for a section 25 certificate and that elaborating on sensitive material could undermine the purpose of the certification process. He also found no additional duty to give reasons under the common law or Constitution in the circumstances.
On waiver, the judgment noted that the tribunal had received limited access to some transcripts relating to calls intercepted in or about 1990, and that evidence on the matter was heard in private session. The records sought in the FOI request were from a later period. The court found no evidence that protection for those records had been waived or undermined.
The court concluded that the certificate was lawful and refused the appeal. It did not determine whether the requested records existed or rule on the merits of withholding them; its decision concerned the legality of the certificate and the point-of-law appeal.