Minister wins appeal over release of data to journalist

A Government Minister has won his appeal over the Information Commissioner’s decision that a journalist is entitled to commercial information about the State’s fibre optic network under the Freedom of Information Act.

The commissioner must reconsider, in line with the Court of Appeal’s findings, journalist Gavin Sheridan’s request for release of the information.

The three-judge court on Wednesday allowed the Minister for Communications’ appeal against the High Court’s dismissal of his challenge to the commissioner’s determination that a contract to manage and operate fibre optic cable networks in towns and cities here should be made available following Mr Sheridan’s Freedom of Information (FoI) request.

The contract was entered into some years ago by the Minister and E-Nasc Éireann Teoranta (Enet).

Concession agreement

Mr Sheridan, a notice party to the action, sought access to information including a concession agreement concerning the fibre optic cable network. The State-owned fibre optic cable infrastructure is known as the Metropolitan Area Networks (Mans) and is used by some telecom operators to provide broadband and other services to customers.

Following a tendering process, the Minister had entered into a concession agreement with Enet, also a notice party to the action, to maintain, manage and operate the Mans.

When Mr Sheridan sought access to that information, the Minister formed a preliminary view the public interest would on balance be better served by granting rather than refusing it.

However, after Enet said the records should not be released on grounds they were commercially sensitive, the Minister, citing a duty of confidence to Enet, refused to provide the information.

The commissioner in November 2015 upheld Mr Sheridan’s appeal over that refusal and found the public interest would be better served by releasing the information.

The Minister went to the High Court on a point of law, arguing the commissioner erred for reasons including applying an incorrect standard requiring the Minister to show that releasing the contract would “totally undermine” Enet’s business.

The High Court’s Mr Justice Seamus Noonan, in dismissing the Minister’s appeal, said it was clear from the commissioner’s decision, unlike the Minister’s, that all arguments in support of non-disclosure were explicitly engaged with and discounted.

Deter future bidders

Arguments that releasing the information would deter future bidders or benefit future tenders for the Mans contract were not accepted by the commissioner and it was not demonstrated disclosure would undermine Enet’s business, he said.

It could not be said the commissioner’s decision was irrational, outside discretion or not in the public interest, he held.

Giving the Court of Appeal judgment, Mr Justice George Birmingham said, in refusing disclosure, the Minister was apparently concerned that release of the concession agreement would lead to costs and prices being made public, damage Enet’s ability to operate competitively and effectively penalise it for doing business with the State.

The commissioner approached his task on an incorrect legal basis to the effect that records exempt by statute were presumed to require disclosure, he held.

Insofar as it was not in dispute the document sought was commercially sensitive, which was expressly acknowledged by the commissioner, the commissioner erred in looking for “exceptional” circumstances if the exemption against disclosure was not to be overridden, he held.

Exempt by statute

The commissioner also erred in law in his view that documents exempt by statute should be required to be disclosed unless doing so would “undermine totally” the business of the company to which they related, he held.

There is no requirement the business of a company engaging with the State should be “totally undermined”, he said.

That was an error in law “of real importance” and such that the commissioner’s decision could not be allowed stand.

Where there are clearly serious issues to be considered in terms of the need to protect commercially sensitive information and clearly significant countervailing considerations which would suggest the public interest might, on balance, be better served by granting rather than refusing the FoI request, he would, subject to hearing counsel, remit the matter for further consideration by the commissioner.

Insofar as the High Court endorsed the commissioner’s approach in those respects, he would allow the appeal.

Final orders were adjourned to allow the sides to consider the judgment.