The High Court has allowed Westwood Club’s statutory appeal over access to records concerning Bray Swimming Pool and Sports Leisure Centre Limited, known as Shoreline, finding material errors in the Information Commissioner’s decision to uphold Bray Town Council’s refusal. The court did not make a final order on the appeal; it said it would hear submissions on that order at a later date.
The club had sought records held by the Council about Shoreline, which the Council established in 2007 to operate a swimming pool and leisure centre. The Council owns all of Shoreline’s shares. The facility was built on Council land, and the Council lent the company more than €10 million. Shoreline later occupied the property under a lease the judge accepted was at an uneconomic rent.
The Information Commissioner divided the request into records held by the Council as shareholder and other records held by Shoreline. The Commissioner found that financial records held by the Council contained commercially sensitive information and that the public interest did not warrant their release. She also found that Shoreline’s other records were not under the Council’s control for the purposes of the Freedom of Information Acts.
On the financial records, Mr Justice Cross found that the Council’s explanation for withholding the accounts largely repeated the statutory test and did not explain how the 2008 and 2009 figures could harm Shoreline’s competitive position. The Council had not addressed the Commissioner’s question about why records several years old remained commercially sensitive. The judge held that the Commissioner erred in law by accepting the explanation without properly assessing the potential harm from releasing historic information. He found no error in the Commissioner’s separate public-interest analysis.
On control, the judge held that the Commissioner had focused too narrowly on day-to-day operations. He said control also had to take account of real strategic control and the financial relationship between the Council and Shoreline. In particular, he found that the Commissioner had failed to consider the Council’s loan of more than €10 million and had treated it as grant funding. The judge concluded that the Council controlled Shoreline and that the contrary conclusion was irrational. He also noted that the Commissioner had not taken account of the lease terms.
The judge found a further error in the preliminary decision, which placed on the club the burden of showing why records should be released. The Act instead presumes a refusal unjustified unless the public body satisfies the Commissioner that it was justified. Although the final decision did not repeat that shift, the judge held that its reliance on the preliminary view tainted the decision.
He allowed the appeal because these errors were material. The judgment did not itself order the records released; the final order remained to be determined after further submissions.