Foilsiú
Mr. Joseph Killilea v the Information Commissioner
Ó Oifig an Choimisinéara Faisnéise
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
Ó Oifig an Choimisinéara Faisnéise
Foilsithe
An t-eolas is déanaí
Teanga: Níl leagan Gaeilge den mhír seo ar fáil.
This judgment was given by the High Court on an appeal by Mr. Joseph Killilea against the Commissioner's decision in Case Number 000028- Mr. Joseph Killilea and the Department of Justice, Equality and Law Reform.
Note: The judgment on this appeal was given by Mr. Justice Murphy on 11 April 2003. A copy of the judgment is reproduced below, the text of which has been approved by the Courts Service.
THE HIGH COURT
[2002 No. 54MCA]
IN THE MATTER OF THE FREEDOM OF INFORMATION ACT, 1997
JOSEPH KILLILEA
APPELLANT
AND
THE INFORMATION COMMISSIONER
RESPONDENT
Judgment of Mr. Justice Murphy dated the 11th day of April, 2003.
1. Pleadings
Mr. Killilea, the appellant, by originating notice of motion dated the 8th April, 2002 appeals against the decision of the Information Commissioner of the 11th March, 2002 and seeks an order directing the Information Commissioner to comply with certain reliefs set out in his grounding affidavit sworn and filed on the 8th April, 2002.
That affidavit at paragraph 2 states as follows
2.This appeal is in accordance with section 42 (1) of the (Freedom of Information 1997 Act, 1997 (“The Act”)) against the decision of the Information Commissioner of the 11th March, 2002, under section 34 (9) (a) (ii) of the Act to discontinue his review of my application on the basis that my application for review does not relate to a decision which he may review, as specified in section 34 (1) of the Act.
2. Legislative Provisions
2.1. This action is an appeal pursuant to section 42 (1) of the Freedom of
Information Act, 1997. That section reads as follows:
42. – (1) a party to a review under section 34 or any person affected by a decision of the Commissioner following such a review may appeal to the High Court on a point of law from the decision.
(2) The requester concerned or any other person affected by –
(a) The issue of a certificate under section 25,
(b) A decision, pursuant to section 8, to refuse to grant a request under section 7 in relation to a record the subject of such a certificate, or
(c) A decision, pursuant to section 14, to refuse to grant, or to uphold a decision to refuse to grant, such a request, may appeal to the High Court on a point of law from such issue or from such decision.
(3) A person may appeal to the High Court from –
(a) A decision under section 14, or
(b) A decision specified in paragraphs (a), (b), (c), (d), (e), (f) or (g) of subsection (1) of that section (other than such a decision made by a person to whom the function stood delegated under section 4 at the time of the making of the decision), made by the Commissioner in respect of a record held by the office of the Commissioner or (in a case where the same person holds the Office of Ombudsman or the Office of Commissioner) made by the Ombudsman in respect of a record held by the Office of the Ombudsman.
(4) An appeal under subsection (1), (2) or (3) shall be initiated not later than four weeks after the notice of the decision concerned was given to the person brining the appeal.
(5) The Commissioner may refer any question of law arising in a review under section 34 to the High Court for a determination, and the Commissioner may postpone the making of a decision following the review until such time as he or she considers convenient after the determination of the High Court.
(6) (a) Where an appeal under this section by a person other than a head is dismissed by the High Court, that Court may, if it considers that the point of law concerned was of exceptional public importance, order that some or all of the costs of the person in relation to the appeal be paid by the public body concerned.(b) The High Court may order that some or all of the costs of a person (other than a head) in relation to a reference under this section be paid by the public body concerned.
(7) A decision of the High Court following an appeal under subsection (1), (2) or (3) shall, where appropriate, specify the period within which affect shall be given to the decision.
(a) The decision of the High Court on an appeal or reference under this section shall be final and conclusive. It is clear that the decision made by the Commissioner is a decision under section 34.
2.2. Section 14 applies to a decision made pursuant to this act by a person to whom the function concerned stood delegated at the time of the making of a decision, inter alia, under section 18 in relation to the contents of a statement furnished under subsection 1 of section 18 or to refuse an application under that subsection.
The head of the public body concerned, on application in writing by a relevant person may review the decision to which the section applies and, following that review, may affirm or vary or annul the decision in accordance with the Act.
Section 4 allows delegation by the head of a public body to a member of the staff of the public body in writing and notified in Iris Oifigiúil.
Section 14 (3) provides as follows:
(3) A person to whom a function under this section stands delegated under section 4 shall not perform that function in relation to a decision to which this section applies that was made by a member of the staff of the public body concerned whose rank is the same as or higher than that of the person aforesaid.
2.3. The appeal is against a decision of the Information Commissioner made on the 11th March, 2002 to exercise his discretionary power under section 34 (9) (ii) of the Act to discontinue his review of the refusal by the Department of Justice of the appellant’s application under section 18 (1) of the Act.
Section 34 (9) (ii) states:
(a) The Commissioner may refuse to grant an application under subsection (2) or discontinue a review under this section if he or she is or becomes of the opinion that -
(ii) the application does not relate to a decision specified in subsection (1),
(b) In determining whether to refuse to grant an application under subsection (2) or to discontinue a review under this section, the Commissioner shall, subject to the provisions of this Act, act in accordance with his or her own discretion.”
2.4. A decision specified in subsection (1) includes a decision under section 14 which includes, at section 14 (1) (f) a decision under section 18 in relation to the contents of a statement furnished under subsection (1) of that section or to refuse an application under that subsection.
2.5. Section 18 states:
(1) The head of a public body shall, on application to him or her in that behalf, in writing
or in such other form as may be determined, by a person who is affected by an act of the body and has a material interest in a matter affected by the act or to which it relates, not later than 4 weeks after the receipt of the application, cause a statement, in writing or in such other form as may be determined, to be given to the person -
(a) of the reasons for the act, and
(b) of any findings on any material issues of fact made for the purpose of the act.
(1) For the purpose of this section a person has a material interest in a matter affected by an act of a public body or to which such an act relates if the consequence or effect of the act may be to confer on or withhold from the person a benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member.
(2) In this section –
“act”, in relation to a public body, includes a decision (other than a decision under this Act) of the body;
“benefit”, in relation to a person, includes –
(a) any advantage to the person,
2.6. Statutory Instrument No. 519 of 1998, Freedom of Information Act, 1997 (Section 18) Regulations, 1998, states:
5. Where a public body receives either –
(a) an application which purports to be an application under section 18 but which is not in the proper form, or
(b) an application which does not purport to be an application under section 18 but which requests information access to which can be obtained only by way of an application under section 18,
the head shall assist, or offer to assist, the individual in the preparation of an application under that section.
3.1 Grounding Affidavit
Mr. Killilea, a member of the Garda Siochana, avers that the basis of his request for information to the Department of Justice (the Department) was made under section 18 of the Act in relation to a suggestion that he submitted on the 25th May, 1993 to the secretary of the Staff Suggestion Scheme, Training and Research Branch, Garda College, Templemore in response to a circular of the 10th February, 1993 entitled Staff Suggestion Scheme for the Garda Siochana which was issued by the Assistant Commissioner in charge of training. This scheme offered a reward relating to savings achieved by implementing any given suggestion. One of four suggestions which was submitted by Mr. Killilea was entitled “Internal Communications” and was acknowledged and given the reference number 131 (a) by the secretary of the committee by letter 26/93 of the 14th July, 1993.
He was informed by the secretary of the committee on the 25th November, 1993 that, having evaluated his suggestion, the committee decided not to accept the suggestion for the following reason:
131 (a) suggestion is too general. The present network would not support.
Two years later in October, 1995 he learnt from an article in the Garda magazine Communique that his suggestion was being implemented. On the 18th of that month he wrote to the secretary of the Department of Finance requesting confirmation that arrangements were being made for payment to him of a prescribed reward. The Department of Finance referred his query to the Department from which he failed to get an acknowledgment that his suggestion was being implemented. He says that the Department dealt with his claim by evading the issue by insisting that it was a complaint against the Staff Suggestion Committee rather than a claim to the ownership of his property.
He says that Mr. Tony Hand, assistant to the general secretary of the Garda Representative Association informed him by letter of the 29th May, 1996
From my knowledge of the information technology programme, the ideas put forward by you are indeed being implemented at present. Since your suggestions were made prior to any decision being taken by management to implement these provisions, there seems little doubt but that you are entitled to due recognition for them. Depending on how strongly you feel about the matter, it seems to me as though the only avenue open to you now is through legal address (sic).
Mr. Killilea further states that a £10 million contract was signed between the Minister for Justice and Anderson Consulting in September, 1996. He avers that publicity in relation to that contract convinced him that what was being implemented was identical to what he had suggested.
He wrote to Anderson Consulting on the 26th February, 1998 informing them of his claim to the intellectual property rights in relation to the project and seeking clarification regarding ownership of same. Anderson Consulting claimed client privilege and referred him to the Garda Siochana.
He then wrote to the Garda Commissioner on the 22nd April, 1998. He was reformed by letter of the 13th May, 1998, in reply, that:
As the discussion between An Garda Siochana and Anderson Consulting did not include your submission to the Staff Suggestion Scheme, the question of protection of your intellectual property rights does not therefore arise.
Reference is made in the grounding affidavit to the role and functions of the Garda Planning Division of the Department and to a prolonged correspondence. On the 6th November, 1998 the appellant made a request under section 7 of the Act “for copies of everything you have in and in relation to … Garda information technology and PULSE project.”
On the 11th May, 1999 he wrote to the Freedom of Information Officer informing of his intention to appeal the refusal to supply records as requested by him under section 7 of the Act and requesting precise information on the ownership of intellectual property rights pertaining to PULSE and the process which led to the awarding of the contract to Anderson Consulting.
He believes that this was a valid request under section 18 of the Act. Ultimately on the 16th November, 1999 he wrote requesting the name of the person who would carry out the internal review in relation to his application under section 18 and was informed that a Mr. Cronin was carrying out the review. He objected to Mr. Cronin carrying out the review of his own decision in contravention of the Act.
On the 17th December, 1999 the Freedom of Information Officer, Mr. Foy, wrote giving Mr. Cronin’s decision at what he sought was not within the scope of section 18.
The decision of the appeal was in the following terms:
Your appeal has been reviewed by Mr. John Cronin, Principal Officer, a more senior official of the Department who has decided to refuse your appeal. Mr. Cronin is of the opinion that you are not a person under section 18 of the Act who ‘is affected by an act of the body and has a material interest in the matter affected by the Act or to which it relates’ and as such you are not entitled to be informed of the reasons for the Act and any findings of material fact relating to it.
Furthermore, the requirement in public bodies to give reasons for the decision, under the provisions of the FOI Act, applies from the commencement date of the Act, i.e. 21st April, 1998 only. The contract in relation to PULSE was signed in 1996 and even if it were deemed that you were affected by this decision of the public body, the right to reasons for decisions is to be given to you under the Act, does not exist.
The letter then dealt with the right of appeal within six months to the Information Commissioner.
On the 14th January, 2000, Mr. Killilea appealed the matter to the Information Commissioner and on the 15th February, 2000, the Information Commissioner wrote informing him that he was accepting his appeal. On the 17th February, 2001, Mr. Rafferty of the Information Commissioner’s office wrote to me setting out his preliminary views on my application. On the 11th March, 2002 the Information Commissioner forwarded his decision.
3.2. Decision of the Information Commissioner
The appellant exhibits the four page decision of the 11th March, 2002 referred to the request in accordance with section 18 of the Act and had regard to seven letters from the appellant and six letters from the Department, the appellants application for review dated the 14th January, 2000 and his letter dated the 22nd January, 2001 in relation to Mr. Rafferty’s preliminary views of the 17th January, 2001. The Commissioners letter continues as follows:
It appears that you are disputing the ownership of certain intellectual property rights relating to the PULSE project on the ground that the system is identical, in your view, to an information system proposed by you to the Garda Siochana Suggestions Committee in May, 1993. As Mr. Rafferty explained to you in his letter of the 17th January, 2001, I have no role in adjudicating on such a matter. To be entitled to a statement of reasons in accordance with section 18, an applicant must have been affected by an Act of the public body and must have a material interest in a matter affected by that Act. Section 18 (5) provides that a person should hold a material interest if the consequence or affect of the Act may be to confer on or withhold from a person of benefit without also conferring it on or withholding it from persons in general or a class of persons which is of significant size having regard to all the circumstances and of which the person is a member.
The Department is clearly of the view that it owns the intellectual property rights pertaining to PULSE. I note, for example, the Departments comments that the contract relating to the detailed design, build and pilot testing of PULSE systems states that copyright and any and all intellectual property rights in relation to the new software products and other deliverables vest in and are owned by An Garda Siochana. The Department might argue, therefore, that the withholding of a benefit in this case, namely the refusal to acknowledge your ownership of the intellectual property rights relating to PULSE, would also be withheld from everyone else in the world given the Departments claim of where ownership lies unless you are in a position to show that you do, in fact, own such rights. However, as I have indicated above, this is not a matter that I, as Information Commissioner can adjudicate upon.
Decision
Without prejudiced here claim that you own the rights, I have decided to discontinue this review in accordance with the provisions of section 34 (9) (a) (ii) of the FOI Act on the basis that your application for review does not relate to a decision which I may review, as specified in section 34 (1) of the Act. I have detailed the basis for my decisions in my findings which follow.
Two pages of findings follow the decision of the Commissioner who notes that Mr. Raffertys letter of the 17th January, 2001 advised the appellant that Mr. Rafferty was not clear as to the act of the Department in respect of which the appellant was seeking a statement of reasons. This was done notwithstanding the fact that the Department had refused the appellant’s request on the ground that he was not a person who was affected by the act to award the contract for the detailed design, build and pilot testing of PULSE systems to Anderson Consulting in 1996.
The Commissioner’s letter examined the issue regarding the ownership of intellectual property rights and the process which led to the awarding of contracts which were raised in the appellant’s letters of the 14th July and the 11th August, 1999. Subsequent letters referred back to a request for that information to enable the appellant to appeal the Departments decision on his request for access to records. It was not a request for a statement of reasons for an act of the Department. Indeed, the letter of the 11th August, 1999 clarified the purpose of the appellants request for information in terms of “what I am investigating here is the theft of my property.”
The Commissioner stated that it appeared that the Department considered that the act for which a statement of reasons was required was the decision to award the contract. The Commissioner believes that the Department was mistaken in coming to such a conclusion and that the appellant’s letter of the 22nd January, 2001 confirmed that belief. That short letter from Mr. Killilea to the Information Commissioner was as follows:
Section 18 Freedom of Information Act, 1997.
Dear Commissioner,
Thank you for your letter of the 17th instant.
The Act is the refusal without just cause to acknowledge my authorship of the communication system now being implemented as PULSE; which Act is preventing me from protecting my intellectual property rights.
Yours sincerely.
The Commissioner referred to the provision of the subparagraph of section 34 referred to allowing him to discontinue a review where he is of the opinion that the application for review does not relate to a decision specified on section 34 (1) which includes a decision to refuse an application under section 18.
4. Replying Affidavit
4.1. By affidavit dated the 3rd May, 2002 Mr. Rafferty, an investigator in the office of the Information Commissioner and with the authority of the Commissioner replied in response to the appellants affidavit of the 4th April, 2002.
Reference is made to the letter of the 15th September, 1999 purporting to make an application under section 18. The Department refused the application on the 17th December, 1999. On the 14th January, 2000 the appellant applied for a review which response was made on the 11th March, 2002.
The affidavit deals with the relevant provisions of the 1997 Act.
The request and review is then considered.
Mr. Rafferty avers that it appears clearly from the appellants letters that he was seeking two principle pieces of information from the Department:
(a) “How Anderson Consulting came to be in possession of (the PULSE) information system …” and “… all the facts pertaining to the ownership of the information system … so that (he could) take steps to vindicate (his) property rights.” (Letter dated the 14th July, 1999); and
(b) “…who (has appropriated) (his) property …” (Letter dated the 11th August, 1999).
4.2. In the light of the foregoing, Mr. Rafferty avers, the respondent Information Commissioner took the view that no valid application had ever been made by the applicant under section 18 (1) of the 1997 Act. As appears from the decision of the Commissioner, this was on the basis that:
(a) The appellant did not identify, in his letter dated the 15th September, 1999, any specific act of the Department for which a statement of reasons was required, nor did he indicate that a statement of reasons was required at all;
(b) The letters to which, in that letter, he sought “reply in accordance with section 18 (1) of the Freedom of Information Act” clearly contained requests for information or exhortations to gather information but did not contain any application for a statement of reasons in respect of a specific act; and
(c) The letter dated the 15th September, 1999, notwithstanding its reference to section 18, properly construed, was a request for the reply to the letters dated the 14th July, 1999 and of the 11th August, 1999 and not an application for a statement of reasons.
Mr. Rafferty then deals with the respondent’s jurisdiction and discretion under section 34 of the Act and he believes that the critical questions was whether the respondent was correct in concluding that the appellant had never made a valid application to the Department under section 18 and, therefore, whether any purported refusal by the Department to furnish a statement under that section, even upon constrain what is understood to be the “act” which the appellant sought a statement of reasons, cannot or ought not to be reviewed by the respondent, on the grounds that no valid request had been made and no reviewable decision had issued on foot of the purported request.
The decision to discontinue the review did not in any sense preclude the appellant from seeking a fresh application to the Department under section 18 of the Act. Mr. Rafferty averred, that by discontinuing the review in the instant case, the respondent ensured a flawed process was terminated in the interests of clarity.
5. Legal Submissions on behalf of the Appellant
5.0. The respondent took the view that no valid application had ever been made by the appellant under section 18 (1) of the 1997 Act.
5.1. The Commissioner says, in the first place, the appellant, in his letter dated 15th September, 1999, had not identified any specific “act” of the Department for which a statement of reasons was required, nor had he indicated that a statement of reasons was required at all.
In order for an individual to be entitled to a statement of reasons he must meet the requirements as set out in section 18 (1). He must be affected by an act of the public body and he must have a material interest in a matter affected by that or to which it relates.
Under section 18 (6)
“act”, in relation to a public body, includes a decision (other than a decision under this Act) of the body;
Ms. Dolores Keane, Counsel for the applicant, submits that this indicates that what may be considered an “act” may include something more than a decision. It may include a course of action which a public body has chosen to adopt without the making of one particular decision.
In the letter dated 17th December, 1999, from the Respondent to the Appellant, the Information Commissioner believed that the Department of Justice thought that the “act” was the concluding of a contract in respect of the PULSE system with Anderson Consulting in 1996. And therefore, in his view, the “act” fell outside the Freedom of Information Act, 1997 as it predated it. In a letter dated 22nd January, 2002 the appellant responded to a request by the respondent to identify the act of the Department which was the subject of his request and stated that the “act” was “the refusal without just cause to acknowledge my authorship of the communication system now being implemented as PULSE, which act is preventing me from protecting my intellectual property rights.”
It was submitted that these two perspectives are essentially two sides of the same coin. They are part of a course of action which, at the end of the day, the appellant believes denied him of his intellectual property rights.
It is a requirement of article 5 of the Freedom of Information Act, 1997 (section 18) Regulations (S.I. no. 519 of 1998) to assist an individual in this respect. This, the applicant says, was not done in his case.
The application that the appellant was making as one under section 18. This is clearly in the letters dated 15th September, 1999 and 13th December, 1999 from Mr. Foy, of the respondent’s office. The latter states:
"The difficulty arose whereby the majority of your correspondence cannot and has not been taken as valid FOI requests and as they relate to information about various aspects of the project rather than access to the relevant records … I agree with your assertion that your letter of 15th September constitutes a request, under section 18 of the Act, for reasons for decisions by a public body, and should have been dealt with accordingly. You have now sought an internal review of the matter, presumably on the basis that a decision had not been reached on your request within the time limits outlined within the Act.”
On that basis it was wrong of the respondent to discontinue the review under section 34 (9) (ii). It did relate to a decision specified, i.e. one made under section 18.
5.2. In the second place the Commissioner relies on the correspondence leading up to the latter dated 15th September, 1999 in which the appellant sought a reply in accordance with section 18 (1). This correspondence, he maintains, contained requests for information or exhortations to gather information but no application for a statement of reasons in respect of a specific act.
Counsel for the appellant submits that the letter of the 15th September, 1999 was an application for a statement of reasons in that the appellant’s sought “a reply in accordance with section 18 (1) of the Act”, i.e. sought a reply in the form of a statement of reasons, keeping in mind the issues raised in his correspondence of 14th July, 1999 – including that he “intended to establish how Anderson Consulting came to be in the possession of this Information System.” The correspondence of 11th August, 1999, stated, inter alia, that “the Department may have, in your words, provided full and comprehensive responses in relation to Garda IT projects and the intellectual property rights thereon” but they most certainly have not provided such responses to me.”
The appellant also relies on the relevant guidelines issued by the Department of Finance. The Short Guide for Public Bodies on the Freedom of Information Act, 1997, issued by the Central Policy Unit of the Department of Finance, in July 1997 and October 1998 note that the “section confers a legal right on each person to
(1) reasons for a decision on any matter particularly affecting that person, and
(2) findings on any material issues of fact relevant to the decision.
Findings on any material issues of fact refer to matters taken into account in making the decision. They may include:
(1) all the steps of reasoning linking the facts to the ultimate decision.
(2) the criteria relevant to the decision, the weighting attached to each criterion and the conclusion reached on each.
(3) any internal rules and guidelines used as part of the decision making process.
(4) details of any recommendations, reports or investigations carried out by subordinate officers or experts and considered in the decision making process.
1.3 In the third place the Commissioner says that the letter of 15th September, 1999 was, properly construed, a request for a reply to earlier letters dated 14th July, 1999 and 11th August, 1999 and not an application for a statement of reasons.
The appellant submits that he asked for a reply “in accordance with section 18 (1) of the Freedom of Information Act” and in that asked him to pay careful attention to the issues he had raised in his correspondence and the guidelines, the requirements of the Civil Service Disciplinary Code and the requirements of criminal law.
1.4 Pre Commencement Issue
In the Preliminary Report of the Information Commissioner, dated the 17th January, 2001, it was stated that a public body cannot normally be required to give reasons for an act which took place prior to the commencement of the FOI Act, i.e. 21st April, 1998. However, it noted that the position might be different were the act in question to have continuing effect after the date. It was further stated that the types of acts or decisions which continue in effect are those which are capable of alteration or reversal at any point during the period in which the act or decision continues in effect.
Firstly, the act of denying the appellant his intellectual property rights or wrongly recognising them to belong to someone else has a continuing effect. In order to have a continuing effect it is not necessary to be capable of alteration or reversal although in this case the act is capable of alteration or reversal and so would fit the definition as set out by the Information Commissioner.
In relation to documents predating the coming into effect of the Act, Counsel relied on the decision of Murphy J. in Chestvale Properties Limited v. Glacken [1992] ILRM 221 where an inspector can exercise the powers apparently vested in him so as to procure documents or obtain information relating to events which predated the comings into operation of the Act (at 228).
It was further submitted that it is appropriate to regard the requirement for giving reasons in respect of acts which concern “personal information” in the same way that the Act views records concerning personal information. More specifically, section 6 (5) states that where:
(a) access to records created before the commencement of this Act is necessary or expedient in order to understand records created after such commencement, or
(b) records created before such commencement relate to personal information about the person seeking access to them,
Subsection (1) shall be construed as conferring the right of access in respect of those records.
Subsection 6 (1) provides as follows
Subject to the provisions of this Act, every person has a right to and shall, on request therefore, be offered access to any record held by a public body and the right so conferred is referenced to in this Act as the right of access.
The definition of “personal information” as set out in section 2:
“personal information” means information about an identifiable individual that –
(a) would, in the ordinary course of events, be known only to the individual or members of the family, or friends, of the individual, or
(b) is held by a public body on the understanding that it would be treated by it as confidential,
…
Without prejudice to the generality of the foregoing, includes:
(xi) information relating to property of the individual (including the nature of the individual’s title to any property).
The appellant submits that he was seeking reasons for an act that concerned information relating to his intellectual property. This was related to personal information and therefore a statement of reasons under section 18 in respect of an act which has its roots laid down before the commencement of the Freedom of Information Act, i.e. 21st April, 1998 should be furnished.
Counsel referred to the comments of O’Donovan J. in the Minister for Agriculture v. Information Commissioner [2000] 1 IR 312 at p. 310 where he states:
“ … in light of the preamble, it seems to me that there can be no doubt but that it was the intention of the legislature, when enacting the provisions of the Freedom of Information Act 1997, that it was only in exceptional cases that members of the public at large should be deprived of access to information in the possession of public bodies and this intention is exemplified by the provision of s. 34 (12) (b) of the Act which provides that a decision to refuse to grant access to information sought shall be presumed not to have been justified until the contrary is shown. Accordingly, it seems to me that the entire Act must be construed in that light …”
5.6. Procedural Irregularities
Section 14 (3) of the Freedom of Information Act, 1997 requires that:
“A person to whom a function under this section stand delegated under section 4 shall not perform that function in relation to a decision to which this section applies that was made by a member of staff of the public body concerned whose rank is the same as or higher than that of the person aforesaid.”
In this case the section was not complied with by the Department as Mr. Cronin, Principal Officer in the Department, dealt with the initial section 18 request and was also the officer who dealt with the internal review of that decision.
Time limits as set out in the Act were not complied with. In terms of the decision of
the Information Officer a decision is required to be made within 4 months. It was 11 months later that the appellant received a decision.
In the letter dated 13th December, 1999 Mr. Foy of the Department of Justice wrote agreeing that the appellant’s letter of the 15th September, 1999 was a section 18 request and that as time had since lapsed the matter was being treated as an internal review. Four days later the internal review was completed and the appeal refused.
5.7. In conclusion, the respondent erred in law in deciding that the appellant had failed to identify any specific act of the Department for which a statement of reasons was required. The “act” may include something more than a specified decision. It may include a course of action which denied the appellant his intellectual property rights and was the foundation for a contract with Anderson Consulting. The respondent also erred in law in denying the appellant reasons for the act which took place prior to the commencement of the Freedom of Information Act, 1997. The act related to personal information relating to property of the appellant. It also had a continuing effect of the appellant.
6. Legal submissions on behalf of the respondent Commissioner
6.1. Counsel for the Commissioner, Ms. Emily Egan, submits that no valid application had ever been made by the appellant under section 18 (1) of the Act. As appears from the Commissioner’s letter of the 11th March, 2002, notifying the appellant of the decision to discontinue his review of the decision of the Department of Justice, Equality and Law Reform, the Commissioner was of the view that no valid application had ever been made by the appellant under section 18 (1) of the 1997 Act because:
(a) The appellant did not identify, in his letter dated the 15th of September, 1999, any specific act of the Department for which a statement of reasons was required, nor did he indicate that a statement of reasons was required at all;
(b) The letters to which, in that letter, he sought “a reply in accordance with section 18 (1) of the Freedom of Information Act” clearly contained requests for information or exhortations to gather information but did not contain any application for a statement of reasons in respect of a specific act; and
(c) The letter dated the 15th September, 1999 was, notwithstanding its reference to section 18, properly construed, a request for a reply to the letters dated the 14th July, 1999 and the 11th August, 1999 and not an application for a statement of reasons.
6.2. Section 18 of the 1997 Act requires a person properly to specify the “act” for which a
statement of reasons and/or a statement of findings on material issues of fact are/is sought.
The person seeking such information must specify the “act”, which, in relation to a public
body, is defined in section 18 (6) of the 1997 Act as including a decision of that body.
If such “act” is not defined with sufficient clarity and specificity, then the application
is not properly made pursuant to section 18. If the “act” for which the reasons and findings are sought is not identified with sufficient specificity and clarity, then it is not possible to either frame or provide a statement of reasons, still less to identify “material issues of fact” in relation thereto. Quite simply, Counsel for the respondent urges, without the proper identification of the “act”, the public body and the Commissioner, and indeed this Court on review, cannot perform their statutory functions or duties.
Furthermore, if the “act” for which the reasons and findings are sought is not identified with sufficient specificity and clarity, then it is not possible to determine whether the person requesting the information is “affected” by the “act” in question or has a “material interest” in the matter affected by the “act” or to which it relates, as required by section 18 (1) and section 18 (5). In other words, it will not be possible for the public body in question to assess whether or not the person requesting information comes within the scope of section 18 unless the “act” is identified with sufficient specificity and clarity. Likewise, it will not be possible for either the Commissioner, on a review pursuant to section 34 of the Act or, indeed, for the High Court, on an appeal pursuant to section 42 of the Act to make any determination on the decision to grant or refuse the application for a statement of reasons of the “act” was not clearly identified at the outset.
6.3. In this case, it is submitted, the appellant’s purported application for a statement of reasons was invalid and fundamentally flawed as a result of his failure to identify, with sufficient specificity, the “act” for which the reasons were sought. The failure of the appellant sufficiently or correctly to identify the “act” in his initial application to the Department or, indeed, at all material times thereafter prior to his letter of the 22nd January, 2001 means that the appellant was effectively requesting the Commissioner to review a decision in relation to a matter which had never been addressed in the first instance by the Department. This, at the very least, would result in the Department not having the opportunity itself to decide at the time of initial decision and internal review whether or not the person had an entitlement to the statement sought and whether, in particular, he was affected by the Department’s act and had a material interest in a matter affected by the act or to which it related, as required by section 18 (1). The Department considered the appellant’s application for a statement of reasons as relating to a particular “act”, which it understood to be the process leading to the award of the PULSE contract to Anderson Consulting.
The Department has not considered the appellant’s request for a statement of reasons in relation to the “act” only then identified in the appellant’s letter of 22nd January, 2002 to the Commissioner as:
“The refusal without just case to acknowledge (the appellant’s) authorship of the communication system now being implemented (as) PULSE; which act is preventing (the appellant) from protecting (his) intellectual property rights.”
The Commissioner’s contends that no valid application for a statement of reasons was ever made by the appellant to the Department. Without prejudice to this, given the lack of specificity in the appellant’s initial request for information to the Department and given the different characterisation of the “act” by the Department in its internal review decision and by the appellant in his letter of 22nd January, 2002 the Department did not have the opportunity of considering any application for a statement of reasons in relation to this particular “act”. In particular, the Department has not had the opportunity of considering whether or not the appellant is a person affected by the “act” now identified by him or whether or not he has a material interest in a matter affected by that “act” or to which it relates, as required by section 18.
6.4. Accordingly, Counsel for the Commissioner submits that the better course of action was for the appellant, in the first instance, to address an application for a statement of reasons for the belatedly identified “act” to the Department and, thereafter, if necessary, to avail of the internal review procedure and, again, to the extent that this was required, avail of a review before the Commissioner and appeal to this Honourable Court.
It was submitted that it was not appropriate for the appellant to bypass the Department. This would deprive it of the opportunity to consider the application by reframing the “act” for which a statement of reasons is sought after it has made a decision to refuse a statement of reasons in relation to the originally identified “act”.
6.5. Section 34 of the Act only empowers the Commissioner to review a decision of the Department. Section 34 does not empower the Commissioner to address, for the first time, a request or application which has never been properly submitted to the Department. In the normal case a public body will already have had the opportunity both to consider the request/application and to make a decision on the request/application which then forms the basis of the Commissioner’s review. It will either have furnished a statement of reasons which the applicant for same contents is insufficient or it will have refused to furnish any statement. In rare cases, it will not have complied with the statutory deadlines for decision-making and will be deemed by section 41 to have given a decision refusing to furnish a statement of reasons. In all of these cases, and unlike the present case, one thing is (and should remain) constant and that is the applicant’s original application for a statement of reasons and, in particular, his characterisation of the “act” in respect of which it is sought.
6.6. The Commissioner’s power to review a decision of a public body pursuant to section 34 is limited to decisions made on foot of requests for access to records or applications for statements of reasons that are properly framed as required by the 1997 Act. In the event that the Commissioner finds that the application is not valid, it was submitted that the Commissioner may discontinue the review pursuant to section 34 (9) (a) (ii) on the grounds that the application does not relate to a decision under section 14. That is to decision under section 14 being prescribed in section 34 (1) as being the types of decision (relevant to this appeal) in relation to which the Commissioner has a review jurisdiction. In this respect, section 14 (1) (f) refers to a decision under section 18, inter alia, to refuse an application under that sub-section.
In order for a decision to be properly characterised as “a decision under section 18 to refuse an application under that sub-section”, the application on foot of which the decision is made must be legally valid. In the present case, it was submitted that for the reasons set out above, the application was not properly made pursuant to section 18. Therefore, the decision of the Department to refuse the application is not, properly speaking, a reviewable decision contemplated as coming with the Commissioner’s jurisdiction by virtue of Section 34 (1) (a). Accordingly a review of such a decision may be discontinued by the Commissioner in the exercise of the dissection vested in him by section 34 (9). Indeed, it was submitted that the instant case illustrates the very rationale fort he inclusion of sub-paragraph (ii) of paragraph (a) of section 34 (9). That is to say, the Oireachtas seems to have considered that the Commissioner ought to be capable of discontinuing a review where, notwithstanding his initial acceptance of same for review and notwithstanding its initial appearance of appropriateness for review, he “becomes of the opinion that … the application does not relate to a decision specified [in section 34 (1)].
It is submitted by the Counsel that this interpretation of the 1997 Act accords with common sense. Otherwise, the Commissioner would be required to consider any refusal of access to records or information whether or not same came within the scope of the 1997 Act. In such circumstances, all that would be required, to render any decision to refuse access reviewable by the Commissioner would be a bald assertion in the request for access that same is made pursuant to the 1997 Act.
On this analysis, the Commissioner would be obliged to conduct a full review of the decision to refuse access to the records or to furnish information requested, merely because the 1997 Act had been invoked, even if such invocation was patently legally unsustainable. It is submitted that, as a creature of statute, the Commissioner is only obliged, or indeed empowered, to review decisions made on foot of requests for access or applications for information which are properly made in accordance with the terms of the Act. The Commissioner would be acting ultra vires if he attempted to embark upon a review of a decision made on foot of an application that did not meet the requirements set out in the 1997 Act. The Court should seek to avoid a construction that produces such an absurd, unworkable or impracticable result. See in this respect Bennion on Statutory Interpretation, pages 679-702.
6.7. In Deely v. The Information Commissioner [2001] 3 I.R. 439, McKechnie J. held that, while a person accessing information under the Act of 1997 does so as of right, the requester must show that his request is made pursuant to a right of access founded on and contained within the Act. In this respect, McKechnie J. stated at page 458 of the judgment:
“The essence of the Act is that when a person comes within Section 6 (1) he may exercise that right, not out of grace and favour of the public body in question, but rather pursuant to the force of law. It is a legal right which he is exercising; indeed under section 8 (4) of the Act, the reasons why he wishes to exercise that right are entirely immaterial. So what is crucial is that a requester must show that his request for access is made pursuant to a right of access, this right being one founded on, and contained within, the provisions of the Act of 1997 itself.”
The respondent submits that, in the present case, having regard to the flawed nature of the appellant’s application for a statement of reasons, the appellant had no legally enforceable right to obtain same pursuant to the 1997 Act. In such circumstances, the appellant’s application for the relevant statement is not made pursuant to any statutory right. Therefore, the decision of the Department to refuse to grant the appellant the information sought did not affect, or address itself to, any legally enforceable right of the appellant and, accordingly, did not give rise to a justiciable controversy capable of being adjudicated upon either by the Commissioner pursuant to section 34 of the 1997 Act or by this Honourable Court, on appeal, pursuant to section 42 of the Act.
6.8. Counsel referred to Ryanair v. Flynn and McAuley [2000] 3 I.R. 240. In that case, following the temporary enforced closure of Dublin Airport, the Minister for Enterprise, Trade and Employment ordered an enquiry under section 38 (2) of the Industrial Relations Act into an escalating dispute between the applicant and the Trade Union. The Minister appointed the respondents to conduct the enquiry. The report of the enquiry dealt with a significant number of issues and made a number of findings which contradicted assurances previously given by the applicant to its staff in relation to the remuneration and benefits enjoyed by those members of staff in comparison with workers employed in similar positions in the applicant’s main competitors at Dublin Airport. Following the report of the enquiry, the applicant sought leave to seek judicial review on grounds that the comparative studies of pay and conditions included comparisons with inappropriate parties, that the conclusions drawn were unreasonable and irrational as they were based on manifest errors and inconsistencies, and that the applicant’s rights to natural and constitutional justice had been breached in the preparation of the report.
In a judgment, dated the 24th March, 2000 Mr. Justice Kearns held that the matter raised before the Court was not justiciable because there was no decision susceptible to being quashed and no legal rights of the applicant were being affected by a mere fact finding report. Decisions can be made which have adverse implications for the persons affected thereby which nevertheless do not infringe that person’s legal rights.
By analogy, in the present case, it is submitted that, having regard to the flaws in the appellant’s application for a statement of reasons, no valid application for a statement of reasons was actually made to the Department. In such circumstances, it is submitted that the refusal of the Department to furnish the information sought does not infringe any legally enforceable right of the applicant. In such circumstances, it was reasonable for the Commissioner to conclude that there was no justiciable matter which required or permitted review or, in other words, that there was no reviewable decision of the type the Oireachtas truly intended him to review under section 34 of the 1997 Act.
The Commissioner’s jurisdiction to review a decision pursuant to section 34 of the Act is limited to decisions made on foot of applications which are validly made. Therefore, it is submitted that the Commissioner is empowered to discontinue a review pursuant to section 34 (9) (a) (ii) if the Commissioner is of the opinion that the application on foot of which the review is based is invalid. Section 34 (9) (b) provides that in determining whether, inter alia, to discontinue a review, the Commissioner shall act in accordance with his discretion. Naturally, the person requesting the information may challenge the Commissioner’s decision (as has occurred in the present case). In such circumstances, the onus of proving that the decision of the Commissioner was erroneous in law clearly rests upon the appellant.
6.8. Appeal to High Court
Section 42 of the 1997 Act provides for a statutory appeal on a point of law to this Honourable Court from decisions of the Commissioner as follows:
“42 – (1) a party to a review under section 34 or any person affected by the decision of the Commissioner following such a review may appeal to the High Court on a point of law from the decision.”
It is submitted that, strictly speaking, the current proceedings are not within the scope of section 42. In this regard, it is submitted that section 42 is restricted in its scope to an appeal against a decision of the Commissioner “following a review” and that it does not extend to a decision of the Commissioner in his discretion to discontinue a review pursuant to sub-paragraph (ii) of paragraph (a) of section 34 (9) of the 1997 Act. A decision to discontinue a review, being an exercise of a statutorily conferred discretionary power, ought only be challenged by way of application for judicial review.
As the appellant has, until recently, represented himself in these proceedings, this procedural point was not taken.
6.9. Standard of unreasonableness:
However, the substantive law applying on an application for judicial review in relation to the standard of unreasonableness required before the Court will set aside an exercise of a statutorily conferred discretionary power ought be applied in the instant appeal by analogy. In O’Donnell v. Dun Laoghaire Corporation [1991] ILRM 301, the applicants applied by way of plenary action seeking an Order that certain water charges imposed by the respondent some years previously were invalid. It was argued by the respondent that it was an abuse of process for the applicants to proceed by way of plenary action, especially since the action had been commenced outside the three month time limit prescribed in respect of judicial review applications by Order 84 Rule 21 of the Rules of the Superior Courts, 1986.
Mr. Justice Costello held at 304, 5 that the safeguards contained in Order 84 should be applied mutatis mutandis to actions against public authorities commenced by plenary summons.
In O’Donnell, the High Court, while not striking out as an abuse of process proceedings seeking declaratory relief in matters of public law by way of plenary proceedings as opposed to by way of application for judicial review, nevertheless applied the requirements of Order 84 of the Rules of the Superior Courts, 1986 with respect to time limits in considering whether or not to grant the declaration concerned.
Counsel for the Commissioner submitted that the Court must apply the principles of judicial review in respect of irrationality to the application of the appellant in these proceedings and find that the plaintiff has wholly failed to satisfy the burden upon him of proving that the decision of the Commissioner is irrational.
Alternatively, even if a decision of the Commissioner to discontinue a review, taken in the exercise of the discretion vested in him by the Oireachtas by means of section 34 (9) of the Act is, properly speaking, within the scope of section 42 (1) of the Act, it is submitted that the Court ought only to upset the Commissioner’s exercise of such discretion if the same were found to have fallen foul of the judicial review standard of reasonableness. In other words, it is submitted that the Court ought not to interfere with the Commissioner’s decision to discontinue his review of the decision made by the Department in this case unless it considers his decision to fly in the face of fundamental reason or common sense or to be so irrational or unreasonable that no reasonable Commissioner could have come to it.
It was submitted that the Commissioner’s decision cannot, on any reading, be said to fly in the face of fundamental reason and common sense. On the contrary, it would be unreasonable and legally infirm to require the Commissioner to adjudicate upon applications for information when same have, because of circumstances such as arose in the instant case, not previously been considered by the public body in question and not been the actual subject of the latter’s determination. Furthermore, it would be unreasonable and legally infirm to require the Commissioner to conduct a full review of a decision on a request for access to records or information (for example, an application for a statement of reasons pursuant to section 18) if the original request was not properly made in accordance with the provisions of the 1997 Act. The Commissioner exercised his statutorily vested discretion to discontinue rationally, reasonably and in accordance with law. In particular that the instant case highlights the very rationale behind the insertion of section 34 (9) (a) (ii) into the 1997 Act and, accordingly, provides a good example of an occasion on which the Commissioner ought to exercise his discretion in the manner in which he did.
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8. Decision
8.1. I have no doubt that the applicant feels grieved at what he believes to be his proposal being rejected and thereafter being the subject of a contract between the Department and Anderson Consulting. It is not the function of the Court in an application of this nature to become involved in the issue of the ownership of an intellectual property right as asserted by the applicant. It may very well be that the reply from the Garda Representative Association referred to above encouraged the applicant to pursue a claim against the Minister for Finance. That matter is, of course, not before this Court.
8.2. What is before this Court is an appeal pursuant to section 42 of the Act. Such an appeal seems to be limited to a party to a review or any other person affected by the decision of the Commissioner following such a review. Counsel for the Commissioner submits that an appeal to the High Court under section 42 is restricted in its scope and necessarily implies a decision of the Commissioner following a review but not to the exercise of a Commissioner to discontinue a review. This, Counsel urges, ought only to be challenged by way of an application for judicial review.
It seems to me that there has been a review. The Commissioner states: “In carrying out my review in this case, I had regard to” and refers to various letters and applications. Having carried out the review his decision was to discontinue it: “I have decided to discontinue this review in accordance with the provisions of section 34 (9) (a) (ii) of the FOI Act.”
There is however much force in the submission that the discretion given in section 34 entitles the Commissioner to do so.
Subsection 2 (b) of that Section provides that the Commissioner following the review, as he or she considers appropriate, may affirm or vary the decision or annul the decision and, if appropriate, make such a decision in relation to the matter concerned as he or she considers proper.
Subsection 9 (a) provides that the Commissioner may refuse to grant an application under subsection (2) if the Commissioner is or becomes of the opinion, inter alia, that the application does not relate to a decision specified. In determining whether to refuse to grant an application under subsection (2) or to discontinue a review under the section the Commissioner shall, subject to the provisions of the Act, act in accordance with his or own discretion.
It does seem to me that this section underlines the autonomy of the Commissioner subject, of course, to the provisions of the Act.
It must be borne in mind that the decision of the Commissioner must relate to reviewable matters that are properly before him. He is not the Department from who certain information has been requested.
The reason for his decision to discontinue the review is set out in his letter of the 11th March, 2002. There is nothing in that letter which would suggest that the Commissioner was acting outside of the powers conferred upon him by the Act.
8.3. I accept the submissions made by Counsel for the Commissioner that the right under the Act is restricted to an “act.” The clarification of the “act” is the appellants letter of 22nd January, 2002 and was not the subject of the request to the Department.
The requestor must show that his request for access is made pursuant to a right of access. See Deely v. Information Commissioner (2001) 3 I.R. 439 at 458 (see 6.7 supra).
Section 42 permits an appeal on a point of law. In this regard it seems that the precedents developed in judicial review proceedings apply.
If a decision of the Commissioner to discontinue a review, taken in the exercise of the discretion vested in him by the Oireachtas by means of section 34 (9) of the Act is, properly speaking, within the scope of section 42 (1) of the Act, the Court ought only to upset the Commissioner’s exercise of such discretion if the same were found to have fallen foul of the judicial review standard of reasonableness. In other words, the Court ought not to interfere with the Commissioner’s decision to discontinue his review of the decision made by the Department in this case unless it considers his decision to fly in the face of fundamental reason or common sense or to be so irrational or unreasonable that no reasonable Commissioner could have come to it.
It would be unreasonable to require the Commissioner to adjudicate upon applications for information when same have not been the actual subject of the departments determination. Furthermore, it would be unreasonable to require the Commissioner to conduct a full review of a decision on a request for access to records or information if the original request was not properly made in accordance with the provisions of the 1997 Act. The Commissioner exercised his statutorily vested discretion to discontinue rationally, reasonably and in accordance with law.
8.4. If one is to approach the matter from the point of view of irrationality, as distinct from jurisdiction, the reasons given in the letter of the 11th March are cogent. It does not seem to me that the Department were requested to deal with the “act” referred to by Mr. Killilea in his letter of the 22nd January to the Commissioner that is “the refusal without just cause to acknowledge my authorship of the communication system now being implemented as PULSE; which act is preventing me from protecting my intellectual property rights.”
There was no act referred to in the letter of the 15th September, 1999 which referred to previous correspondence regarding the ownership of intellectual property rights and the process which led to the awarding of contracts.
Certain information was requested in the letter of the 14th July, 1999 which referred to a number of things about an article in the Irish Independent of the 2nd October, 1996 which were of interest to the appellant. In the last paragraph of that letter he stated that he was now asking the Department “as the contracting Government Department to make whatever inquiries are necessary to establish all the facts pertaining to the ownership of the information system and to communicate that information to me so I can take steps to vindicate my properties rights.”
The second letter, to which the letter of the 15th September, 1999 refers, is that of the 11th August, 1999 which asked for a decision for information under section which requests information “of the most basic kind.” The appellant continues: “obviously, some other person has appropriated my property and I want to know who that person is. That information is in the possession of or available to the Department of Justice and I am requesting it. If I am going to be refused that information, I want to know the name and rank of the person and the Department responsible for that refusal.”
The power of the Commissioner under section 34 is to review a decision and not to deal with a request or application which has not been submitted to a public body. That power to review is limited to decisions made on foot of requests for access to records or, as in this case, for statements of reasons in relation to an act of that public body.
It seems to me that the Commissioner exercised his powers within the discretion given to him and within the ambit of the act and furthermore gave reasons for his decision.
It seems further that the applicant can suffer no prejudice with regard to the technical nature of the legislation insofar as he is not precluded from making a valid section 18 request in the future.
8.5. Counsel on behalf of the appellant raised certain matters regarding the retrospective nature of the request which I should deal with for the sake of completeness.
Mr. Rafferty makes the distinction between records and reasons for decisions. Section 6 (5) of the Act specifically provides for a rights of access to certain specified records created prior to the commencement of the Act. There is no indication in relation to statements of reasons for acts made before the commencement of the Act. It is clear that the decision to award the contract to Anderson Consulting was, indeed, made before the commencement of the Act on the 21st April, 1998.
Reference was made to the decision of the High Court (Murphy J.) in Chestvale Properties Limited v. Glackin (1992) ILRM 221. At 227 of that judgment dealing with the argument on retrospectively it was stated as follows:
Legislation is said to operate retrospectively where it “takes away or impairs any vested right acquired under existing laws, or creates new obligation, or imposing a new duty, or attaches a new disability in respect to transactions or considerations already passed.” This definition has been accepted and applied by the Supreme Court in Hamilton v. Hamilton (1982) IR 471 474.
At common law there was a presumption, a strong presumption, that a statute is intended by parliament to operate a prospect of not only retrospectively. This presumption is based on the proposition that ordinarily the retrospective operation of statute would cause injustice and that parliament could not have presumed to have intended such a consequence.
Whilst part 2 of the Companies Act, 1990 is seen as constituting a significant reformation of company law and does undoubtedly create new powers and impose new duties the basic concept of appointing competent inspectors to investigate the affairs of the company is of origin …
Of course part 2 of the 1990 Act is clearly and exclusively prospective in the sense that inspectors can be appointed thereunder only after the relevant provisions of that part came into operation. The issue between the parties to the present proceedings is whether an inspector thus appointed could exercise the powers apparently vested in him under the 1990 Act so as to procure documents or obtain information relating to events which predated the coming into operation of the Act. While the Act does not state in expressed terms whether it should operate in this way I have no doubt at all that this was indeed the intention of the legislature. In this regard the most significant fact is the appeal by section 6 of the Companies Act, 1990 of all the provisions of the Companies Act, 1963 dealing with the appointment of inspectors. If the former powers for investigation were no longer available to an inspector appointed under the 1990 Act how could he possibly discharge the obligations imposed upon him to investigate and report in any matters referred to in part 2 of the 1990 Act unless the code created by part 2 thereof was intended to be available to him to explore matters which are of their nature historic in their origins and which would entail at least in the years immediately following the enactment of the 1990 Act, a review of facts and documents predating the coming into operation of the Act. It seems to me that in this way and to this extent pre 1990 transactions are exposed to the post 1990 regime.
Having considered the constitutionality of part 2 of the Companies Act, Murphy J. concluded:
It is my view, therefore, that notwithstanding the presumption against retrospectively and all legislation enacted by the Oireachtas, part 2 of the Companies Act, 1990 operates retrospectively to the extent that any inspector appointed by the Minister under section 14 of that Act is entitled to compel the production of documents from persons having the custody thereof notwithstanding the fact that the contract under which say such custody was obtained was made before the relevant sections of the legislation came into operation and this is so whether the person having such custody is a bank or solicitor though subject in the case of a solicitor to the preservation by section 23 of the Act to the full legal professional privilege of the client.
Furthermore I am satisfied for the reasons given that the operation of the sections in this way does not constitute an impermissible or unjust attack on the property rights of the applicant or either of them or indeed any citizen directly or indirectly holding shares therein.
This decision relates to the powers of an inspector under the Companies Act which existed in the 1963 Act to a lesser extent.
Such powers are required to discharge the obligations of the inspector in relation to investigation of companies. It does not seem to me to be relevant to the obligation of a public body to give reasons for acts commenced before the coming into operation of the Freedom of Information Act. It is not of the same category or required for the same purpose.
However the subsection also provides that notwithstanding subsections (1) and (4) but subject to subsection (6) where –
(a) Access to records created before the commencement of this act is necessarily expedient in order to understand records created after such commencement, or
(c) Records created before such commencement related to personal information about subsection (1) shall be construed as conferring the right of access in respect of those records.
It may be that the wide definition of “records” in section 2 of the 1997 Act may permit retrospectively.
However, as I have already determined this provision can have no application where there is no proper application before the Commissioner.
8.6. As the request did not refer to an “act” of the Department it seems to me that the procedural irregularities complained of at 5.6. above have no relevance.
For the reasons set forth above the Court refuses the appeal.
cc(josephkillilea)JM
Killilea v. Information Commissioner 2002/54MCA
1.1.93 Staff Suggestion Scheme Circular.
1.1.93 Mr. Killilea submits suggestion entitled “Internal Communications.”
1.1.93 Suggestion acknowledged and numbered 131(a).
25.11.93 Committee decided not to accept suggestion: “131(a) suggestion is too general. The present network would not support
10.95 Garda magazine Communique refers to internal communications.
18.10.95 Killilea to Department of Finance requesting payment. No acknowledgment that his suggestion was being implemented.
29.05.96 Garda Representative Association to Killilea: “there seems little doubt but that you are entitled to due recognition.”
09.96 Contract between Department of Justice and Anderson Consulting for £10m project.
26.02.98 Killilea to Anderson claims intellectual property in project.
22.04.98 Killilea to Garda Commissioner.
13.05.98 Garda Commissioner in reply: “your submission not included in discussions with Anderson.”
06.11.98 Killilea requests, under s.7 for “copies of everything you have in and in relation to … Garda information technology and PULSE project.
11.05.99 Killilea to Freedom of Information (FOI) officer.
16.11.99 Killilea to FOI officer re internal review – under s. 18 of Act. Objection to Mr. Cronin.
17.12.99 Mr. Cronin’s decision: request not within scope of s. 18.
14.01.00 Mr. Killilea appealed.
22.01.00 Killilea to FOI Commissioner re Act of refusal.
15.02.00 FOI Commissioner accepted appeal.
17.02.01 Mr. Rafferty of FOI gave preliminary views.
11.03.02 FOI Commissioner gave decision.