The Court of Appeal has dismissed Dr Patrick Kelly’s appeal over the discontinuation of seven Freedom of Information reviews concerning requests he made to University College Dublin (UCD). It held that he had no right to appeal that decision to the High Court under section 42(1) of the Freedom of Information Act 1997 because the reviews had not reached a conclusion.
The Information Commissioner had begun reviewing decisions to refuse access to records, then discontinued the reviews after forming the opinion that the applications were vexatious. In a letter dated 11 September 2013, she said she considered Kelly was using FOI tactically in pursuit of a long-standing grievance with UCD and that the reviews formed part of a pattern of conduct amounting to abuse of the process. Those were the Commissioner’s stated reasons, not findings made by the Court of Appeal in this appeal.
Kelly sought a High Court order allowing an appeal on a point of law and setting aside the Commissioner’s decision. The High Court, on 7 October 2014, held that section 42(1) did not provide a statutory appeal from a discontinued review. It said a challenge to the discontinuation could instead be brought by judicial review. The High Court also addressed some issues conditionally, on the assumption that its interpretation of the appeal provision might be wrong.
The Court of Appeal agreed with the High Court’s interpretation. It said section 34 distinguishes between refusing to begin a review and discontinuing one that has begun. In this case, a review had started but was stopped before the Commissioner affirmed, varied or annulled the underlying decisions. The court read the words “following such a review” in section 42(1) as requiring a review to have concluded before a statutory appeal could be brought.
Kelly relied on the earlier High Court decision in Killilea v Information Commissioner. The Court of Appeal described it as, at best, very weak authority for his interpretation: the issue had been raised there but was not actually taken, and its resolution was not necessary to that judgment. The court said it would, if necessary, conclude that Killilea did not give the correct interpretation.
The appeal was dismissed. The court did not decide whether the Commissioner was right to discontinue the reviews as vexatious, and it did not determine issues that would arise only if a judicial review were brought. Its decision was limited to the availability of a statutory appeal under section 42(1).