The Supreme Court has allowed the Information Commissioner’s appeal in a dispute over access to records concerning University College Cork’s €100 million loan agreement with the European Investment Bank (EIB). It remitted the matter to the Commissioner for a further decision in light of the Court’s judgment and its decision in a related case.
The appeal arose from RTÉ’s freedom of information request for records about UCC’s financial management of the loan. The records identified were the finance contract and three internal UCC documents: a 2015 Finance Committee report, a February 2016 financial spreadsheet and a May 2016 report on the loan agreement.
UCC refused access, arguing that disclosure could harm its or the EIB’s commercial interests. In December 2017, the Commissioner directed release of the finance contract with specified redactions, and release of the other three records in full. UCC appealed. The High Court set the Commissioner’s decision aside and sent the matter back for reconsideration, finding errors in her approach to the statutory presumption, commercial prejudice and the public interest.
The Supreme Court held that the Commissioner was right to require UCC to justify the claimed exemption under section 36(1)(b) of the Freedom of Information Act 2014. That exemption has two alternative tests: disclosure could reasonably be expected to cause material financial loss or gain, or could prejudice a person’s competitive position. The Court said the second test has a low threshold, but a bare assertion of prejudice is insufficient; the FOI body must provide a reasonable basis for its position.
The Court also found that the High Court judge should not have allowed UCC to change its position on records 2 to 4 during litigation by proposing redacted versions. The requester had not been given those proposed versions before they were presented to the High Court, and the statutory process required the requester’s observations to be invited and considered. The Court said the Commissioner’s process concerning the finance contract was not flawed on that basis, as the proposed redacted version had been before her.
However, the Supreme Court concluded that the Commissioner had not sufficiently engaged with the proposed redactions to the finance contract or considered whether to direct redactions herself. The Court said she had a statutory power, and a corresponding duty, to assess the records and consider redacting parts of them.
Allowing the appeal, the Court said it could not determine what might have happened if UCC’s later concessions about records 2 to 4 had been made to the Commissioner earlier. It remitted the matter for the Commissioner to decide again. The judgment does not itself order disclosure of the records.