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Published 30 November 2020
In two recent judgments regarding the application of the Freedom of Information Act 2014 (“FOI Act”), the Supreme Court has ruled that public bodies are required to justify refusals to disclose confidential or commercially sensitive documents pursuant to an FOI request (Minister for Communications, Energy and Natural Resources v the Information Commissioner  IESC 57 ), (“the ENET case”) and University College Cork v the Information Commissioner  IESC 57 ) (“the UCC case”). The Court has ruled that even if the documentation fell within one of the statutory exemptions under the FOI Act, the public body must explain why the public interest does not justify the release of these documents.
The FOI Act provides a legal right for every person to access information held by public bodies (as defined by the FOI Act). However, Part 4 of the FOI Act contains a number of exemptions to this general right. Exemptions include records which are obtained in confidence (section 35), records which relate to commercially sensitive information (section 36) and for reasons of law enforcement and public safety (section 32).
In the UCC case, RTÉ had sought to obtain details of a €100 million loan given to University College Cork by the European Investment Bank, whilst in the ENET case, a journalist, Gavin Sheridan had sought a copy of a contract between the Department of Communications and e-Nasc Éireann Teoranta (“ENET”) in respect of the State’s fibre-optic broadband network. University College Cork initially refused to release the records on the grounds of commercial sensitivity, pursuant to section 36 of the FOI Act, whereas the Department of Communications’ refusal was based on both commercial sensitivity and confidentiality (section 35). Both decisions were appealed to the Supreme Court.
The Supreme Court ultimately held that while public bodies are entitled to refuse to disclose commercially sensitive or confidential information pursuant to an FOI request, the decision must be adequately justified. In the ENET case, the Court outlined that the Department of Communications could benefit from the confidentiality exception under the FOI Act if the disclosure of the record would amount to a breach of duty of confidence as created by contract or statute, provided that the public interest would not be better served by granting the release of the record (section 35(3)). In the UCC case, the Court followed the ENET decision, outlining that UCC was required to establish that the records were commercially sensitive and that the public interest was not better served by disclosing them. As a result of these findings, both matters were remitted to the Office of the Information Commissioner for re-evaluation.
Both decisions mark a departure from the previous position that there was a presumption in favour of disclosure in respect of exempt records under the FOI Act. Public bodies will now be required to carefully consider whether the public interest justifies disclosure of documents pursuant to an FOI request.
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