The High Court dismissed Patrick Kelly’s appeal against the Information Commissioner’s decision to discontinue seven reviews of freedom of information requests to University College Dublin (UCD), finding it had no jurisdiction to hear the statutory appeal.
The reviews concerned requests made between April 2012 and April 2013, including requests for information about course admissions, an alleged entry into Mr Kelly’s apartment building, and UCD’s costs orders and related litigation. The Commissioner discontinued the reviews in September 2013 under section 34(9) of the Freedom of Information Act, finding that they formed part of a pattern of conduct amounting to an abuse of the FOI process.
In a judgment delivered on 7 October 2014, Ms Justice Iseult O’Malley held that the High Court’s statutory appeal jurisdiction covered points of law arising from a substantive decision after a full review. It did not extend to a decision to refuse to begin a review or to discontinue one that had started. The appropriate route to challenge those decisions, including procedural complaints, was judicial review.
The judge said she had no jurisdiction to entertain the appeal. She nevertheless addressed the Commissioner’s interpretation of “frivolous or vexatious” in case that issue amounted to a point of law. She said the Commissioner could use common-sense inferences from a pattern of conduct and did not have to prove the applicant’s state of mind. On the material before her, the Commissioner had not erred in applying the test to the seven requests.
The judge considered that the requests related to Mr Kelly’s long-running dispute with UCD. She said one sought information that court proceedings had already determined he was not entitled to receive, while the others concerned the conduct of litigation. She also said the Commissioner was entitled to consider the wider context and had explained why she concluded that the FOI process was being used to pursue the grievance.
The appeal also raised the fairness of communications between UCD and the Commissioner’s office, the authority of an official who swore affidavits for the Commissioner, and a request for an order directing publication of a 2008 court order on the Commissioner’s website. The judge found no substance in the affidavit-authority argument and said the court had no power under the Act to order publication. She did not give an advisory opinion on procedural complaints reserved for judicial review.
The court dismissed the appeal. The judgment did not decide a judicial review challenge to the Commissioner’s procedures.