In McKillen v Information Commissioner (and The Minister for Finance, Notice Party)  IEHC 27, the High Court dismissed an appeal against a decision of the Information Commissioner. It was an appeal on a point of law pursuant to section 42 Freedom of Information Act 1997 (“1997 Act”). This is an interesting and important decision for public bodies subject to the FOI regime, for the following two reasons:
- The decision considers the scope of an appeal against a decision of the Information Commissioner; and
- The use of freedom of information (FOI) where litigation is in being and a discovery request has been made.
While the decision was made on the basis of the 1997 Act, as amended, which has now been repealed, similar provisions exist in the Freedom of Information Act 2014 (“2014 Act”) and it therefore continues to be of relevance. However it is worth noting that section 24 of the 2014 Act allows for an appeal where the party or person concerned contends that the release of a record concerned would contravene a requirement imposed by European Union Law, on a finding of fact set out of inherent in the decision.
By way of background, the Appellant, Patrick McKillen, issued an FOI request to the Minister for Finance requesting records concerning him or his personal or business loans held by the Minister for Finance, a Notice Party to these proceedings. The Appellant indicated that he wished to access any records concerning an approach by any individual or business seeking information about his loans or lobbying for the opportunity to acquire personal or business loans in which the Appellant had an interest.
While the Notice Party responded to the Appellant’s request, due to a number of refusals, the Appellant sought an internal appeal of the Notice Party’s decision. Not satisfied with the outcome of the internal appeal, the Appellant then applied to the Information Commissioner for a review of the Notice Party’s decision. Following much correspondence, the Information Commissioner advised the Appellant that those documents which had been supplied through discovery (in litigation between the Appellant and the Minister of Finance) could not be supplied through FOI, citing section 22 (1) (b) of the 1997 Act.
Section 22 (1) (b) provides that “a head shall refuse to grant a request under section 7 of the record concerned ….
(b) is such that its disclosure would constitute contempt of court”
Decision of the Court
The High Court dismissed the appeal of the Appellant, on the basis that there was no error of law in the approach taken by the Information Commissioner and that the Information Commissioner was bound to follow the decision of EH and EPH –v- The Information Commissioner  2 I.R. 463 (“EH”).
The High Court held that the standard to be met by the Appellant in an appeal pursuant to section 42 of the 1997 Act is virtually indistinguishable from that applied by the court in judicial review matters. The High Court held that the decision of the Information Commissioner should not be interfered with “unless it is either based on no evidence or flies in the face of fundamental reason and common sense”. It was immaterial if the court would have arrived at a different decision based on the same evidence. Inferences will not be set aside unless they are such that no reasonable decision maker could have drawn then.
The scope of a section 42 appeal is further limited by reference to the materials that were before the Information Commissioner and the submissions made to her. A section 42 appeal is not a de novo hearing, where the appellant is at large to advance new arguments or evidence not previously put before the Information Commissioner.
Discovery Order –v- FOI Request
In the EH case, O’Neill J stated as follows:-
“In my view the purpose of s. 22 (1) (b) is to prevent the Act of 1997 operating in such a way as to permit interference in the administration of justice, a function which is reserved by the Constitution solely to the courts established by or under the Constitution. If it were the case that one could under the provisions of the Act of 1997 obtain documents disclosure of which was prohibited by the ruling of a court or by a undertaking given to a court, I have no doubt that this would amount to a gross and constitutionally impermissible interference in the administration of justice…”
The High Court held that it was bound by the decision of EH that a party obtaining the production of documents by discovery in court proceedings gives an implicit undertaking to the court that he or she will not make any use of the documents or the information contained therein otherwise than for the purpose of the action.
Judge Noonan refused to distinguish the current case on the basis that the FOI request here had been made prior to the making of the discovery order, unlike in EH. He stated that that fact made no material difference, and that "the views expressed by O'Neill J. [in EH] could not be clearer".
For those the subject of an FOI request, it would be prudent to establish if there is any litigation in being which is the subject of a discovery order and then whether the same documents respond to the FOI request as to the discovery order. Section 22(1)(b) requires disclosure of those documents under FOI to be refused, on the basis that such disclosure would constitute a contempt of court.
For a full copy of the judgment, please click here.