The Court of Appeal has allowed the Minister for Communications, Energy and Natural Resources’ appeal over an order to release a 2009 broadband concession agreement between the department and e-NASC Eireann Teoranta, trading as enet.
The appeal concerned Gavin Sheridan’s Freedom of Information request for contracts relating to enet’s appointment to manage the Metropolitan Area Networks developed under the Regional Broadband Programme. Only the concession agreement remained in dispute. The Minister had refused access on confidentiality and commercial sensitivity grounds.
In November 2015, the Information Commissioner directed the Minister to release the agreement. The High Court dismissed the Minister’s appeal on a point of law. The Minister then appealed to the Court of Appeal.
The Court of Appeal held that the Commissioner had applied an incorrect legal basis in treating the statutory presumption against refusal as applying to records exempt under the Freedom of Information Act. It also found a more fundamental error in the Commissioner’s treatment of commercial sensitivity: the Commissioner had said the department and enet had not shown that releasing the contract would “totally undermine” enet’s business. The court said the law did not require proof of total undermining before commercial harm could weigh against disclosure.
The judgment also addressed the Commissioner’s reference to “exceptional circumstances” and section 35, which concerns information given in confidence. The court considered the exceptional-circumstances approach potentially suggestive of an added threshold. On section 35, it accepted the Commissioner’s interpretation that the relevant provision disapplied the confidentiality exemption in the circumstances under consideration. The court described the section as unclear and said the point was not necessary to its conclusion on the appeal.
The court allowed the appeal because of the errors it identified. It did not itself order that the agreement be released or withheld, and the judgment’s concluding order does not state that the matter was remitted to the Commissioner. The judgment records that the President said he would, subject to hearing counsel, remit the matter for further consideration; it does not record a final remittal order.