The Supreme Court dismissed Barney Sheedy’s appeal over access to primary school inspectors’ reports, leaving in place the Information Commissioner’s decision that the reports were not exempt from disclosure under section 32(1)(a) of the Freedom of Information Act 1997.
The request for all primary school inspectors’ reports had been made by The Irish Times to the Minister for Education and Science. The Minister refused access on several grounds, including section 53 of the Education Act 1998. The Information Commissioner reviewed the refusal and found that section 53 did not prevent access.
In a judgment delivered on 30 May 2005, Mr Justice Fennelly said the appeal was on a point of law under the Freedom of Information Act. He agreed with Mr Justice Kearns that the grounds based on sections 21 and 26 of the 1997 Act should be dismissed. His judgment addressed the remaining dispute about section 32 of that Act and section 53 of the 1998 Act.
Justice Fennelly said section 53 allowed the Minister to refuse access in certain circumstances, but did not remove the matter from the Freedom of Information Act’s procedures. He said the Act provided a mechanism for dealing with other enactments that prohibited disclosure or authorised discretionary non-disclosure. In his view, section 53 was compatible with that framework and permitted discretionary refusal.
The Commissioner had concluded, after examining the reports, that they would not enable the compilation of information about schools’ comparative academic performance within the meaning of section 53. The Commissioner considered that any comparisons would be subjective and that an empirical league table could not be compiled.
Justice Fennelly treated that conclusion as a finding of fact. He said the Supreme Court, hearing an appeal on a point of law, could not set aside factual inferences unless no reasonable decision-making body could draw them. He found no legal error and said the Commissioner’s conclusion was not unreasonable to the required standard.
Justice Fennelly also said the challenge to whether the Commissioner had jurisdiction under the Act was misconceived in this appeal; he considered that such a challenge would have required judicial review. His judgment was one of the judgments in the appeal and adopted the factual and procedural summary in Justice Kearns’s judgment. The order was to dismiss the appeal.