Company loses appeal over FOI documents

In the first judicial interpretation of a key provision of the Freedom of Information Act relating to access to documents created before the Act came into being in April 1998, the High Court yesterday endorsed the view of the Information Commissioner on the circumstances in which a citizen may secure access to such documents.

Mr Justice Kelly rejected arguments, advanced on behalf of a Cork company which had been refused certain records under the Act, that records which were created prior to the commencement of the Act are disclosable if they have a relationship to - or can be regarded as being relevant to - records created after commencement of the Act.

The decision is the first judicial interpretation of Section 6.5.a of the Act, which provides for a right of access for every person to records held by specified public bodies. The right is qualified in certain respects.

The Act stipulates that, with two exceptions, the right of access does not apply to documents created before the Act commenced on April 21st, 1998. Access is permitted under Section 6.5.b to pre-commencement records relating to personal information about the person seeking access to them and, under Section 6.5.a, when it is "necessary or expedient" in order to understand records created after the commencement of the Act.

The construction of Section 6.5.a was at the centre of the case before Mr Justice Kelly yesterday. This was an appeal by Salve Marine Ltd, of Crosshaven, Co Cork, which is involved in the maintenance and repair of boats, against a decision of the Information Commissioner of December 13th 1999 upholding the Department of Defence's refusal to release to it records relating to a 1995 contract between the Department and a French company for vessel maintenance.

Salve Marine is seeking the documents for legal proceedings against the French company and the Department. The company had been involved in the maintenance and repair of Department of Defence vessels at Haul bowline, Co Cork, and sourced its parts from the French company, which ultimately secured the contract for such work.

Ms Maire Kirrane, instructed by H.V. Donoghue, solicitors for the company, said it had been asked with others to tender for the 1995 contract, but had not tendered, because it was aware that the Department was going to ask the French company to provide the parts directly and cut out Salve Marine, which was the "middle man". It had suffered great loss as a result.

Counsel said that the company had sought documents from the Department for its civil action and had been given 221 pages of documents related to dates after the commencement, on April 21st 1998, of the FOI Act. The documents were mainly sales invoices and could not be understood in the absence of documents dated prior to the commencement of the Act.

Giving judgment, Mr Justice Kelly said the FOI Act was an important piece of legislation and its title provided for a right of access - to the greatest extent possible consistent with the public interest and the right to privacy - for citizens to records created after the Act had commenced. But there were limitations on access.

He added that the focus of the appeal was the proper interpretation of Section 6.5.a and the application of that to the facts of the case. There were three possible constructions of Section 6.5.a. The first was that records created before commencement of the Act may not be produced unless it is shown that access is necessary or expedient to understand records created after commencement, with the word "understand" being interpreted in its literal sense - whether the post-commencement document could be literally comprehended.

The Commissioner had determined that the critical question in interpreting Section 6.5.a was whether the pre-commencement documents were necessary to understand the substance or gist of the documents created after the Act commenced. The Commissioner took the view that the fact that a document does not contain all the information which a requestor might wish to have does not mean the substance of the document cannot be understood. He also observed that the fact that an earlier record may throw fresh light on the subject discussed in a later record, or may enable the requestor to extend or analyse information in a later record, did not mean that access to the earlier records was necessary or expedient in order to understand the later records.

Mr Justice Kelly said that was the correct interpretation of the section. It gave effect to the object of the Act in a purposeful and meaningful way.

He dismissed the appeal but made no order for costs.