BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Supreme Court of Ireland Decisions
You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Sheedy -v- The Information Commissioner [2005] IESC 35 (30 May 2005)
URL: http://www.bailii.org/ie/cases/IESC/2005/S35.html
Cite as: [2005] 2 IR 272, [2005] 2 ILRM 374, [2005] IESC 35, [2005] 2 IR 252

[New search] [Help]

Judgment Title: Sheedy -v- The Information Commissioner

Neutral Citation: [2005] IESC 35

Supreme Court Record Number: 339/04

High Court Record Number: 2003 20 MCA

Date of Delivery: 30/05/2005

Court: Supreme Court


Composition of Court: Denham J., Fennelly J., Kearns J.

Judgment by: Fennelly J.

Status of Judgment: Approved

Judgments by
Result
Concurring
Dissenting
Fennelly J.
Appeal dismissed - affirm High Court Order
Kearns J.
Appeal allowed - set aside High Court Order
Denham J.

Outcome: Allow And Set Aside


THE SUPREME COURT
Record No. 339/2004

Denham J.
Fennelly J.
Kearns J.

IN THE MATTER OF THE FREEDOM OF INFORMATION ACT, 1997
BETWEEN
BARNEY SHEEDY
Appellant
and
THE INFORMATION COMMISSIONER
Respondent
and
THE MINISTER FOR EDUCATION and SCIENCE
First Notice Party
and
THE IRISH TIMES LIMITED
Second Notice Party

JUDGMENT of Mr. Justice Fennelly delivered the 30th day of May, 2005.
I gratefully adopt the summary of the facts and procedural history of this appeal set out in the judgment of Kearns J. I would add that I fully agree with his proposal that the grounds of appeal based on sections 21 and 26 of the Freedom of Information Act, 1997 (which I will call “the 1997 Act”) should be dismissed. I differ only in respect of the treatment of section 32 of that Act, read with section 53 of the Education Act, 1998 (“the 1998 Act”).
The passing of the Freedom of Information Act constituted a legislative development of major importance. By it, the Oireachtas took a considered and deliberate step which dramatically alters the administrative assumptions and culture of centuries. It replaces the presumption of secrecy with one of openness. It is designed to open up the workings of government and administration to scrutiny. It is not designed simply to satisfy the appetite of the media for stories. It is for the benefit of every citizen. It lets light in to the offices and filing cabinets of our rulers. The principle of free access to publicly held information is part of a world-wide trend. The general assumption is that it originates in the Scandinavian countries. The Treaty of Amsterdam adopted a new Article 255 of the EC Treaty providing that every citizen of the European Union should have access to the documents of the European Parliament, Council and Commission.
The long title to the 1997 Act did something which has regrettably become uncommon. It proclaimed its purposes in a long title. This is deserving of full citation. The 1997 Act is stated to be: Section 6(1) of the 1997 Act gives effect to the general principle, thus proclaimed, of public access to documents “to the greatest extent possible consistent with the public interest and the right to privacy” as follows:

“(1) Subject to the provisions of this Act, every person has a right to and shall, on request therefor, be offered access to any record held by a public body and the right so conferred is referred to in this Act as the right of access.

(2) It shall be the duty of a public body to give reasonable assistance to a person who is seeking a record under this Act—

This is the first appeal under the Act to come before this Court, the Oireachtas having repealed the bar on such appeals contained in section 42(8) of the 1997 Act. (see section 27 of the Freedom of Information (Amendment) Act, 2003.) Prior to now, therefore, all judgments on the operation of the Act have been given in the High Court. McKechnie J made a number of statements of general importance, with which I fully agree, in John Deely v. The Information Commissioner [2001] 3 IR 439 at 442
In addition, the learned judge made the following observations about the scope and limitations of an appeal taken to the High Court pursuant to section 42(1) of the Act. He said at page 452:
(a) it cannot set aside findings of primary fact unless there is no evidence to support such findings;

(b) it ought not to set aside inferences drawn from such facts unless such inferences were ones which no reasonable decision making body could draw;

(c) it can however, reverse such inferences, if the same were based on the interpretation of documents and should do so if incorrect; and finally;

(d) if the conclusion reached by such bodies shows that they have taken an erroneous view of the law, then that also is a ground for setting aside the resulting decision……”

In my view, the learned judge was correct to say that these propositions were based on established principles. He cited well-known authority in support of them: Mara v. Hummingbird Ltd. [1982] 2 I.L.R.M. 421, Henry Denny & Sons (Ireland) Ltd. v. Minister for Social Welfare [1998] 1 IR 34 and Premier Periclase v. Commissioner of Valuation (Unreported, High Court, Kelly J., 24th June, 1999). I believe that these principles are applicable to this appeal. It is important to bear in mind, firstly, that the appeal comes before this court through the mechanism and procedures of the 1997 Act and not otherwise and, secondly, that the Court is concerned with an appeal on a point of law.
In the present case, the initial request made by the Irish Times for access to all school reports of Primary School Inspectors went through all the statutory stages. There was, presumably, a two-stage refusal of access by the Minister under sections 7 and 14 of the Act, although the relevant decisions are not before the Court. One of a number of grounds of the refusal advanced by the Minister was based on section 53 of the 1998 Act. I am not concerned with any of the other grounds, since I am in agreement with Kearns J that the appeal should be dismissed insofar as it relates to any matter other than section 53.
As is clear from the judgment of Kearns J, the Commissioner, having been asked to review the Minister’s refusal of access to the relevant records pursuant to section 34 of the Act, rejected that ground of refusal. It is interesting to note that another ground originally advanced was, pursuant section 10(1)(c) of the Act, “that the examination and retrieval of the records sought would cause a substantial and unreasonable interference with or disruption of the other work of the public body concerned.” It does not appear, therefore, that the Minister contested the jurisdiction of the Information Commissioner or the propriety of the making of the request by invoking the procedures under the Act. He advanced a number of grounds of refusal recognised by the 1997 Act. He accepted the request made by the Irish Times and dealt with it under sections 7 and 14. He then asked the Commissioner to review the decision in accordance with his powers and using the procedure provided by section 34 of the Act.
Section 42(1) of the Act provides:
It is no longer contested that the Appellant is a “person affected.” The Minister has not, however, appealed.
A principal submission made by Mr Gerard Hogan, Senior Counsel, on behalf of the Appellant was that, by section 53 of the 1998 Act, the Oireachtas had decided to disapply the 1997 Act, that section 53 was a “stand-alone” section and should not be interpreted by reference to the 1997 Act. Mr Hogan argued that the 1997 Act was an ordinary piece of legislation, and that its legislative character or value was no different from any other Act of the Oireachtas. It had no constitutional or quasi-constitutional status. For the purposes of statutory interpretation and, in particular for the purposes of being affected by subsequent legislation, it should be treated like any other Act of the Oireachtas. Thus, it was a particularly important part, perhaps even the essence of Mr Hogan’s submission that the Court should not interpret section 53 of the 1998 Act by reference to or by importing into it the general principles underlying the 1997 Act. He criticised the Commissioner for failing to give effect to the “fundamental principle” of section 53.
The written submissions of the Commissioner say, on the other hand, that the relevant question, in the context of an application for a review before the Commissioner or on appeal before the High Court in a freedom-of-information context is whether a particular statutory non-disclosure provision applies by reference to section 32. It is submitted that there is a harmonious co-existence between statutory non-disclosure provisions in other legislation and those contained in the 1997 Act.
On this issue, I am satisfied that the Commissioner is plainly correct. The dispute as to disclosure of the inspectors’ reports comes before this Court exclusively as an appeal pursuant to and employing the machinery of the 1997 Act. If the Minister had exercised his right to appeal and claimed, as the Appellant effectively does, that the Freedom of Information Act does not apply, I believe he would have been met with the effective answer that he could not employ the machinery of the Act to argue that the Commissioner had no jurisdiction under the Act to grant access to documents covered by section 53. The Appellant is clearly in the same position. I cannot understand how the Commissioner can be criticised for considering the application of section 53 of the 1998 Act in the light of the principles underlying the 1997 Act. Such criticism is misconceived. It is the 1997 Act which gives jurisdiction to the Commissioner. By the same token, this Court, in entertaining an appeal pursuant to the 1997 Act, must consider it in that context.
It is true that the Commissioner appears to have addressed the matter as if disclosure of the records mentioned in section 53 of the 1998 Act was “prohibited” by that section. It may be that this is a simple error of transposition, though the Commissioner, in his decision, expressly attributes this submission to the Minister. Whatever its source, the approach is clearly erroneous. The applicable provision is section 32(1)(b) of the 1997 Act, which I cite below. Under that provision, refusal to disclose is discretionary. Equally, section 53 of the 1998 Act is expressed in permissive terms: “Notwithstanding any other enactment the Minister…may refuse access to any information which would enable……” Mr Hogan appeared to accept that section 53 is the sort of enactment which is capable of coming within section 32. Nonetheless, he argued, based on the introductory phrase (“notwithstanding any other enactment”) that the 1997 Act was, in effect “disapplied” by section 53.
The appropriate course for the Appellant or the Minister to have taken to support that contention would have been to apply to the High Court by way of judicial review of the decision of the Commissioner. I do not believe that the machinery of appeal to the High Court and by extension to this Court can validly be used to challenge the very basis of the jurisdiction of the Commissioner and the applicability of the 1997 Act. For that reason alone, therefore, I believe that this argument of the Appellant is misconceived. This is an appeal pursuant to the Freedom of Information Act. I would dismiss the appeal.
However, in deference to the extensive arguments that have been heard by the Court, and to remove any doubt, I will express my opinion on the argument that section 53 of the 1998 Act in some manner disapplied the 1997 Act. I do not believe that the Oireachtas can have intended such a result. Furthermore, it is neither sensible nor necessary, in order to give effect to the intent of section 53, to attribute any such intention to the Oireachtas.
For all the reasons already given, the 1997 Act was a piece of legislation of major significance. It was also intended, except for those restrictions and limitations contained within it, to have universal application, meaning that it extends to every class of record held by any public body listed in the First Schedule to the Act. Nonetheless, within its own terms, it recognised that there could be legislative provision (past or future) either prohibiting disclosure or permitting non-disclosure on a discretionary basis. It included a specific statutory mechanism to accommodate such legislation. Section 32 reads:
(a) the disclosure of the record concerned is prohibited by any enactment (other than a provision specified in column (3) of the Third Schedule of an enactment specified in that Schedule), or
(b) the non-disclosure of the record is authorised by any such enactment in certain circumstances and the case is one in which the head would, pursuant to the enactment, refuse to disclose the record.” Section 2 defines an enactment as meaning a statute or an instrument made under a power conferred by a statute. Clearly, the term is wide enough to include both past and future enactments. Thus, to the extent that section 53 of the 1998 Act permits non-disclosure it is perfectly compatible with the 1997 Act.
Having enacted in such clear terms legislation of purportedly universal application providing for public access to all state documents, the Oireachtas is, according to the Appellant, to be deemed, within a year, and without any express reference to the 1997 Act, to have intended to remove a poorly defined category of information contained in publicly held records entirely from the purview of the Act and to submit it’s disclosure exclusively to the unfettered discretion of the Minister. One consequence of that approach would inevitably be that any discretionary decision of the Minister would be reviewable, if at all, only on grounds of irrationality (see The State (Keegan) v. The Stardust Victims' Compensation Tribunal [1986 I.R. 642] ). Effectively, that would involve a move from the presumption in favour of disclosure written into the 1997 Act to an even stronger contrary presumption. It is stronger, firstly, because, a person seeking disclosure of records possibly within the scope of section 53 does not have any prima facie right of access to them. Outside the framework of the Freedom of Information Act, it is difficult to se how any citizen (or any member of the media in the capacity of citizen) would have the standing to require the Minister to justify refusal of access. Secondly, it is stronger because any decision by the Minister not to disclose would be virtually beyond review.
But the problems created by this approach do not end there. As is disclosed by the argument in the present case, there is wide room for legitimate debate as to whether any particular documents do or do not come within the scope of section 53. The Appellant accepts that the inspectors’ reports do not come within paragraphs (i) or (ii) of section 53. He says that they come, and then only in part, within the general description: “information which would enable the compilation of information (that is not otherwise available to the general public) in relation to the comparative performance of schools in respect of the academic achievement of students enrolled therein…” Clearly, any judgment on this issue is highly subjective.
What if the Commissioner considers that certain documents do not come within the scope of section 53? That would give him jurisdiction under the 1997 Act. But the Minister might consider that the same records are covered by the section. As already stated his opinion on that issue would be virtually unreviewable? At least the 1997 Act provides a considered and detailed machinery for determining such an issue. The Minister would be in a position to challenge any decision of the Commissioner by appealing on a point of law to the High Court. However, if the Minister simply refuses access, there is no available machinery for resolution of the conflict.
I believe that the result postulated is redolent of conflict and cannot have been intended. I believe that the more reasonable intention to attribute to the Oireachtas is that requests for access to information the kind mentioned in section 53 could be made, but that the applicable machinery is that provided in the 1997 Act. Section 53 lays down no procedure or criteria at all.
In answer to an invitation from the Court to address it on the principles applicable to situations of conflict between legislative provisions, Mr Hogan cited the judgment of Henchy J, on behalf of this Court, in McLoughlin v Minister for Public Service [1985] I.R. 631. There was a conflict between two provisions for the Garda Síochána Compensation legislation, one requiring a pension or allowance to be taken “into consideration” and the other stating that it should not be “taken into account.” Henchy J at page 655 noted “ a want of congruity between the two provisions...” in which event he thought that the provision representing “the later thinking of the Oireachtas should prevail……” The point to note is that the “incongruity” seemed unavoidable. By implication, I believe he would have preferred a solution which made the provisions compatible, as is possible here. Mr Hogan also drew attention to the maxim generalia specialibus non derogant, referring to a passage from the Earl of Selborne quoted by Henchy J in DPP v Grey [1986] I.R. 317 at 327. The passage is from The Vera Cruz (1884) 10 App. Cas. 59 at p.68 and reads as follows:
Henchy J was alone in considering this maxim relevant to resolution of the issue before the Court. Nonetheless, the principle offers useful guidance and, if applicable to the relationship between section 53 of the 1998 Act and the 1997 Act, it suggests that the court should not regard the later Act of 1998 as affecting the earlier one of 1997. Such rules are, in any event, intended as useful guides to ascertaining the intention of the Oireachtas. The matter is discussed as follows in Bennion on Statutory Interpretation [Butterworths LexisNexis 4th Ed .London 2002]:
Clearly, the problem is to identify what is general and what is specific. Is the subject-matter here the class of documents or is it the provision regarding disclosure? The class of information mentioned in section 53 is necessarily narrower than the universality of records covered by the 1997 Act. On the other hand, section 53 lays down only the most general rule regarding the Minister’s power to refuse disclosure, but providing no machinery for requests or who can make them. The 1997 Act, on the other hand, contains detailed and specific provision regarding that subject. Thus considered, section 53 is the general provision and the 1997 Act is more specific. This view tends to resolution of the jurisdictional conflicts I have postulated, by reconciling the two provisions rather than placing them in conflict.
It is plain that section 53 of the 1998 Act deals with the same subject-matter as the 1997 Act, namely the disclosure of information. To that extent, the two enactments are in pari materia. There are strong intuitive reasons favouring a harmonious interpretation of the two provisions. The introductory words, “notwithstanding any other enactment,” are general, not specific. The Oireachtas must be presumed to be aware of the existing state of the law at the time it enacts legislation. If it had intended to remove the documents mentioned in section 53 from the purview of the 1997 Act, as distinct from enacting a provision of the type specially provided for in section 32 of the latter, I believe it would have clearly said so. I also believe that the maxim generalia specialibus non derogant provides support for the continued effectiveness and applicability of the 1997 Act.
Accordingly, I am of the opinion that, even if the matter were procedurally regularly before this court, for example by way of judicial review, that it would be correct to hold that the Oireachtas did not intend, in enacting section 53 of the 1998 Act to amend the 1997 Act. A more commonsense and realistic interpretation is that it intended to adopt legislation which, subject to operation of the procedures of the 1997 Act, would enable the Minister to refuse disclosure of records.
Finally, it is necessary to consider the effect of section 53 in the light of the conclusion I have reached, namely that it is a provision of the type provided for in section 32(1) allowing for discretionary refusal. The reasons for the decision of the Commissioner are fully set out in the judgment of Kearns J and I do not wish unnecessarily to repeat them. The crucial passage in the Decision is as follows:

It is important to observe, in the first instance, that this is a conclusion of fact. The Commissioner expressed his view that the information contained in the reports, to adapt the relevant words of section 53, “would [not] enable the compilation of information ………in relation to the comparative performance of schools in respect of the academic achievement of students enrolled therein…”
Mr Hogan conceded that the Tuarisc Scoil does not enable compilation of information of the type mentioned in sub-paragraphs (i) or (ii). He argues that the “academic achievement of students” has broader scope or meaning. He refers to some laudatory comments on one page of the report: regarding English that “pupils’ written work is of a very high standard in terms of the range of topics covered, presentation and standard of spelling;” regarding mathematics, that “written work is of an impressive standard, inclusive of the range of assignments and neatness and accuracy of presentation.”
The Commissioner nonetheless concluded that he did “not believe that any empirical league table of schools, even one based on overall impressions, could be compiled.” He also remarked on the subjective quality of the observations. Bearing in mind the statutory presumption in favour of disclosure, to which the Commissioner drew attention, and the fact that his conclusion is one of fact, I do not believe that the Appellant has established any mistake of law. Bearing in mind that this Court is considering an appeal on a point of law, I believe that paragraph (b) of the principles summarised by McKechnie J, cited above is applicable, namely that the Court “ought not to set aside inferences drawn from…… facts unless such inferences were ones which no reasonable decision making body could draw.” The vehicle of appeal on a point of law cannot have been intended to involve the High Court or, a fortiori, this Court in detailed review of the Commissioners conclusions of fact. I do not think the conclusion of the Commissioner that the inspectors’ reports did not come within section 53 was unreasonable at all and it certainly was not unreasonable to the standard required to enable this Court to disagree with him in the context of an appeal on a point of law.
I would dismiss the appeal.

JUDGMENT of Mr. Justice Kearns delivered the 30th day of May, 2005
The appellant is the principal of Scoil Choilm, a primary school at Armagh Road, Crumlin, Dublin 12. It is one of five inner city schools where an inspection of the school was carried out in March, 2001 by an inspector appointed by the Department of Education. The reports were prepared in accordance with Department Circulars numbers 31/82 and 12/83, the latter of which provides:-The circular also provides that the report “should be based on the knowledge the Inspectors have gained of the school as a result of periodic visits”
The report (Tuairisc Scoile) in this case was completed on 30th July, 2001. The report presented a favourable view of Scoil Choilm and contained a considerable amount of information about the school, including factual background material about the history and location of the school, school accommodation, management arrangements within the school, links with parents and the wider community, organisation of classes, preparation and planning of educational programmes, languages and mathematics, social, personal and health education, creative and aesthetic activities, pupils with special needs, a post inspection meeting and a conclusion.
The second notice party herein, The Irish Times, applied to the Department of Education under the Freedom of Information Act, 1997, (hereinafter referred to as “The Act of 1997”) for access to a number of Tuairiscí Scoile, including the report written in respect of the appellant’s school. The Department refused to grant such access, having regard, inter alia, to s.53 of the Education Act, 1998, (hereinafter referred to as “The Act of 1998”) and ss. 21, 26 and 28 of the Act of 1997. Any difficulties arising under s.28 of the Act of 1998 (which relates to personal information) were later resolved by the deletion of any material containing personal information from the reports.
The second notice party sought a review of the Department’s refusal from the respondent under s.34 (2) of the Act of 1997. The Commissioner, by decision dated 5th March, 2003, set aside the decision of the Department and directed that access be given to redacted versions of the Tuairiscí Scoile for some five schools, including Scoil Choilm. All personal information (within the meaning of s.28 Act of 1997) was excluded from the redacted version. The appellant appealed the Commissioner’s decision to grant access to the redacted version of the Tuairiscí Scoile in respect of Scoil Choilm to the High Court pursuant to the provisions of s.42(1) of the Act of 1997.
In a reserved judgment delivered on the 20th May, 2004, Gilligan J. found that the appellant had locus standi to bring the proceedings (a finding which has not been challenged in the appeal to this court) but nonetheless found in favour of the respondent on the same grounds as those relied upon by the Commissioner. He then stayed publication of the Tuairisc Scoile report dated the 30th July, 2001, pending the final determination of an appeal to this court. The grounds of the appeal to this court may be summarised as follows:-
(1) That the learned trial judge misdirected himself in law and in fact in his interpretation of and/or his application of s.53 of the Education Act, 1998.
(2) That the learned trial judge erred in law and in fact in his interpretation of and/or his application of s.32 (1) of the Freedom of Information Act, 1997.
(3) That the learned trial judge erred in law and in fact in his interpretation of and/or his application of s.21 (1) (a) and (b), and s. 21 (2) of the Freedom of Information Act, 1997.
(4) That the learned trial judge erred in law and in fact in his interpretation of and/or his application of s.26 of the Freedom of Information Act, 1997.

It is perhaps appropriate to note that the Department of Education did not itself appeal the respondent’s decision to the High Court.Section 53 of the Act of 1998 & Section 32 (1) of the Act of 1997
The first and second grounds of appeal relate to s.53 of the Act of 1998 and s 32 (1) of the Act of 1997 and should be dealt with together.
Section 53 provides that:-
“Notwithstanding any other enactment the Minister may -
(a) Refuse access to any information which would enable the compilation of information (that is not otherwise available to the general public) in relation to the comparative performance of schools in respect of the academic achievement of students enrolled therein, including, without prejudice to the generality of the foregoing -
(i) The overall results in any year of students in a particular school in an examination, or
(ii) The comparative overall results in any year of students in different schools in an examination, and It is accepted by both sides in this appeal that the inspector’s report did not disclose any individual marks or performances in any examinations, so that the case does not come within either of the specific examples contained in s.53 (a) (i) or (ii) of the Act of 1998. The first question in this part of the case, therefore, is whether the release of such reports would “enable the compilation of information… in relation to the comparative performance of schools in respect of the academic achievement of students.”
The second question, which of necessity will, however, be dealt with first, concerns the extent to which the interpretation of s. 53 may be affected by the stated intent and policy of the Act of 1997 and by the provisions contained at s. 32 (1) of the Act of 1997 .
The long title to the Act of 1997 states that it is:-“(1) A head shall refuse to grant a request under section 7 if – The term “head” is defined in s. 2 of the Act of 1997 as “head of a public body” and “head of a public body” in relation to a Department of State means “the Minister of the Government having charge of it”
Section 7 of the Act of 1997 provides that a person who wishes to exercise the right of access to records may make a request in writing to the head of the public body concerned for access to a particular record.
Decisions to refuse a request under s.7 of the Act of 1997 may be reviewed by the Commissioner under s. 34 of the Act of 1997 and in the context of any such review it is provided as follows at s. 34 (12) (b):-Before considering the manner in which the Commissioner approached his review in this case, it is perhaps appropriate to give a flavour of what was said concerning academic standards in the report under consideration here:- In refusing to release the report in this case, the Department relied upon the provisions of s. 53 of the Act of 1998, arguing that the disclosure of the five reports sought (of which this was one) would enable school league tables to be produced. It argued that the purpose of s. 53 is to prevent the compilation of such tables. It submitted to the Commissioner that the compilation of any such tables would adversely impact on the school system and on the Department’s ability to manage those schools.
In dealing with this issue, the Commissioner stated:- As noted above, a head would appear to have no discretion and must refuse release where disclosure is prohibited under s. 32 (1)(a), so that the Commissioner’s statement that “release could be refused” seems more appropriate to a refusal under s.32(1)(b) of the Act of 1997. Section 21 of the Act of 1997
Section 21 of Act of 1997 Act deals with the “functions and negotiations of public bodies” and provides as follows:- (a) Prejudice the effectiveness of tests, examinations, investigations, enquiries or audits conducted by or on behalf of the public body concerned or the procedures or methods employed for the conduct thereof,
(b) Have a significant, adverse effect on the performance by the body of any of its functions relating to management (including industrial relations and management of its staff), orIn describing his approach to a claim for exemption under s. 21, the Commissioner stated as follows:-
The Commissioner also pointed to the statutory nature of the mandate for the work of Inspectors under s.13 of the Act of 1998 as meeting any concerns that schools would not co-operate with the compilation of future inspection reports if disclosure were to be directed.
Section 13 (a)(i) Act of 1998 provides for the appointment by the Minister of Inspectors who - Having noted these provisions the Commissioner was satisfied that they provided the Department with the necessary authority to effectively require the co-operation of schools in the compilation of school reports so that any suggestion that schools would not in future co-operate was without substance.He noted that the Department’s second submission suggested that difficulties with ‘partners’ could arise if information which could lead to the creation of league tables were to be released, thereby frustrating the aims of the Act of 1998. The Commissioner took ‘partners’ in this context to mean the relevant trade unions and/or board of management. He further took it as an alternatively based claim for exemption under s.21 (1)(a) or s.21(1)(b) of the Act of 1997. However, by an application of the same reasoning which informed his decision in relation to s.53 of the Act of 1998, he concluded that he did not believe the information contained in the reports could give rise to the compilation of information envisaged in the Act of 1998 and therefore did not accept such argument. He invoked s.34 (12) of the Act of 1997 to conclude that the Department had not justified its decision to refuse access under s.21(1)(a) or (b).
At a later point in his decision the Commissioner found that, even if s.21 (1)(a) or 21(1)(b) applied, s. 21(2) still permitted him to hold that release would be justified given that in his view the public interest would, on balance, be better served by granting than by refusing to grant the request . He concluded:-
“I consider that there is a significant public interest in information about schools being available to the public. Given the vast expenditure of public funds on the education system, it can hardly be argued that what goes on in a school is always the business only of the board of management, teachers, parents or pupils. The protection of the right to privacy may require access to some records or parts of records relating to schools to be withheld. However, I find it difficult to see why records of the kind at issue in this review need to be withheld from the public. I have already stated that I am satisfied that disclosure of the contents of these reports would not be in breach of the provisions of the Education Act or lead to any meaningful comparisons between schools. In the absence of any countervailing public interest and if I had to decide this case on whether the public interest would be better served by release, I would find in favour of release”

Section 26 of the Act of 1997
Section 26 of the Act of 1997 relates to information obtained in confidence and provides that a head shall refuse to grant a request under s.7 if:-In dealing with this issue, the Commissioner noted that s.26 provided exemption for certain information given to a public body in confidence. However, he noted that s.26 (2) provided that such exemption would not apply to a record which was prepared by a head, director or member of staff in the course of the performance of his/her functions. The one exception to that rule was where the disclosure of the information concerned would constitute a breach of a duty of confidence owed to a person other than a public body or head or director, or member of staff of a public body. It followed therefore, the Commissioner stated, that the exemptions in s.26 (1) were capable of applying, but only if disclosure of the information in the reports would constitute breach of a duty of confidence owed by the Department to the staff, principal or board of management of the schools in question.
He noted that no argument had been made in relation to any specific agreement or enactment in relation to this matter, so he had thus considered whether an equitable duty of confidence existed in this case. He accepted as correct the test set out by Megarry J in the case of Coco v A.N. Clarke (Engineers) Limited [1969]R.P.C.48, [1968] F.S.R. 415 and as adopted by Costello J in House of Spring Gardens Limited v Point Blank Limited [1984] I.R. 611 at pp. 638-639:-
“Three elements are normally required if, apart from contract, a case of breach of confidence is to succeed. First, the information itself…must have the necessary quality of confidence about it. Secondly, that information must have been imparted in circumstances imposing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it”
The Commissioner was satisfied that no circumstances arose in the instant case such as would create a duty of confidence and stated:-
“These school reports were prepared by inspectors who are members of staff of the Department. They were prepared on the course of the performance of their functions. They consist of the authors’, i.e. the inspectors’, own opinions and observations formed during the course of their visits to the schools. In my view such matters cannot be the subject of a duty of confidence if for no other reason than these opinions and observations were not ‘imparted’ to them by anyone”.
While accepting there was information in the reports which may have been provided to the Inspectors, such as details of a school’s size, accommodation and resources, it was information which he felt was available to any member of the public and did not consist of “private or secret matters”. While some opinions expressed by the Inspectors were formed as a result of discussion with teachers and management in the schools concerned, it was highly unlikely – given the purpose of the reports and the circumstances of their creation – that these views or some of them were expressed in confidence. Having examined the reports he was satisfied that they did not contain any information that could be said to have been imparted in circumstances imposing an obligation of confidence or have the necessary quality of confidence about it. He thus did not accept that release of any part of the reports would give rise to a breach of any duty of confidence and in the circumstances found that by virtue of s.26(2), the exemptions in s.26(1) could not apply.


DECISION
Before addressing the three issues that arise for determination on this appeal, it is perhaps appropriate to consider the legal principles applicable where an appeal from a review of the Commissioner is made to the court.
As was emphasised by O’Donovan J in the Minister for Agriculture and Food v The Information Commissioner (2000) 1 I.R. 309 at 319:-It is clear that the learned trial judge in this case brought an approach to the appeal before him which reflected this sentiment, not only as regards the decision making power of the Commissioner under the Act of 1997, but also as regards the Commissioner’s interpretation of s.53 of the Act of 1998.
In his conclusion, the learned trial judge brought to all issues the principles which McKechnie J. suggested were appropriate in Deely v The Information Commissioner [2001] 3 IR 439 when he stated (at 452):-This is a helpful resume with which one would not disagree, but it would be obviously incorrect to apply exclusively judicial review principles to matters of statutory interpretation in the way that might be appropriate to issues of fact. A legal interpretation of a statute is either correct or incorrect, and the essence of this case is to determine whether the interpretation given first by the Commissioner and later by Gilligan J. to s.53 of the Education Act, 1998 was correct or otherwise.


S.53 of the Act of 1998
The learned High Court judge adopted entirely the reasoning of the Commissioner to hold on this issue as follows at p.19:-
What this conclusion does not address is the meaning and appropriate construction to be given to s. 53 of the Act of 1998, which was clearly evaluated both by the Commissioner and the learned trial judge exclusively through the prism of s.34 (12)(b) and s. 32(1)(a) of the Act of 1997.
One might again pause at this point to observe that s. 32(1)(a) provides that a head “shall refuse” a request to disclose where disclosure is “prohibited by any enactment”. There is no discretion of any sort where this sub-section applies. It does not appear to have been considered that the non-disclosure in this case might more properly have been seen to have been one falling within s. 32(1)(b) of the Act of 1997 where non-disclosure is authorised (as distinct from prohibited) by an enactment and the case is one in which the head would, pursuant to the enactment, refuse to disclose the record. Section 53 is clearly discretionary in nature.
The question however, regardless of which part of s.32(1) is invoked, is whether or not this section can, or should, as has been urged upon this court, inform the interpretation of s. 53, the critical portion of which in this context is the following:-The use of a “notwithstanding” clause is a convenient form of drafting which skirts or avoids textual amendments to existing legislation but nonetheless operates by implication to bring about amendments or repeals of such legislation. A recent example is to be found in the constitutional amendment effected pursuant to the Citizenship Referendum, 2004, whereby Article 2 of the Constitution (which provided that every person born in the island of Ireland enjoyed a constitutional right to citizenship) was effectively amended by the addition of Article 9.2.1 which now provides:-
“Notwithstanding any other provision of this Constitution, a person born in the island of Ireland….who does not have, at the time of birth of that person, at least one parent who is an Irish citizen…is not entitled to Irish citizenship or nationality, unless provided by law” (emphasis added).
Such a clause can clearly operate to nullify or override other provisions of the same piece of legislation or inconsistent provisions contained in previous legislation.
Because of the “notwithstanding” clause in s. 53 it seems to me impossible to construe the Acts of 1997 and 1998 together, or as forming part of a continuum. The word “notwithstanding” is in this instance a prepositional sentence-starter which unequivocally means, and can only mean, “despite” or “in spite of” any other enactment. It underlines in the clearest possible manner the free-standing nature of the provision thereafter set out in s.53. As Bennion (Statutory Interpretation) 3rd Ed. points out (at 214):-To the extent that the later enactment may be seen as an implied partial repeal of a former enactment, Bennion also states (at p.225):-If these were two Acts in pari materia a case might be made that they should be construed together and as interpreting and enforcing each other. Thus Lord Mansfield in R v Loxdale (1758) 1 Burr 445 (at 447) was able to state:- These are not however two Acts in pari materia – they do not have a collective title nor do they address the same or a single subject matter. They are as far removed from a ‘code’ - such as, for example, the Road Traffic Acts – as one could imagine. There is no way in which s. 32 can be seen as explanatory of s.53 or vice-versa. The court cannot force a construction on s. 53 of the Act of 1998 in some way so as to yield up an interpretation which fits the aims and policy of the Act of 1997 when there is no ambiguity whatsoever in the opening words of s. 53.
On the contrary, it seems quite possible, having regard to the temporal proximity of its enactment in 1998 to the Act of 1997, that s. 53 may well have been inserted in the Act of 1998 with the unspoken intention of “batting off’ the application of the Freedom of Information Act, 1997, to what historically has been a highly contentious issue, namely, that of making public certain findings in relation to the comparative performance of schools.
In my view s. 53 of the Act of 1998 overrides or ‘trumps’ any provision of the Act of 1997, unless of course, it can be shown that the school reports in question do not come within the protection offered by s.53.
In this regard it is common case that the information gathered does not contain examination results. However, the general words of s.53 go further than examination results and I think it obvious that the reference to “comparative performance of schools in respect of academic achievement of students” may include a whole range of other considerations in respect of which comparisons between different schools could still nevertheless be drawn up. Academic achievements include examinations. Academic achievement can however be taken as meaning something more and the parties to this appeal have not argued that a purely mechanistic and functional meaning should be given to the words “academic achievement” so as to limit the meaning of those words to examination results alone. A range of other considerations must be included, some of which will show one school to differ from another and perhaps be performing better than another across a range of subjects or activities. These might include considerations of how pupils appear to be doing in particular subjects, such as Irish or English, or in activities such as sport or drama. Even without the criteria of examination results being brought to bear, significant performance related differences may be evident from a description of the activities carried out in any school or group of schools. These are precisely the kind of matters addressed by the school report. Given that primary schools, with which we are here concerned, no longer have examinations, so that s. 53 (a)(i) and(ii) can never apply to them in any event, it is not difficult to see that the general words of s.53 have a particular relevance to their situation and it is equally clear that the release of the information in the reports could lead to comparisons being drawn between different schools. Indeed there is a recognition and acknowledgement of that fact in the Commissioner’s review. That recognition having been given, it does not seem to me to be open to the Commissioner to then dis-apply the section’s general words by introducing the concept of subjectivity to downplay any comparison that might be drawn. The section itself does not distinguish between any subjective or objective test for comparisons which might be drawn, and the importation of this concept may be seen as effectively re-writing the section to a particular end.
I am fortified in the view I have taken by reference to s.13 (3)(a)(i) of the Act of 1998. It provides that inspectors shall:-Reports which comply with these requirements must, it seems to me, provide a basis for a real comparison between the various schools where such reports are compiled.
Whatever the desirability of making such information available to the public, it must also be said that this is not information “otherwise available to the general public”. If it was, the application by the Irish Times would be completely superfluous and unnecessary. Such information may be available to the Department or to the board, patron, parents of students and/or teachers in an individual school, but that is a group or category which falls well short of the “general public”. I am satisfied that the information contained in the report meets this further requirement of the section also.
For these various reasons I would allow the appeal on the s.53 point.

S. 21 of the Act of 1997
On this issue the learned trial judge found that the appellant had not discharged the onus of showing that a significant adverse effect could result in the granting of access to the records and that no satisfactory evidence had been adduced in this regard.
He also found that, having regard to the provisions of s. 13 of the Act of 1998, on foot of which teaching staff are required to co-operate in the provision of information leading to the compilation of school reports, that the Commissioner was entitled to take the view that no prejudice or adverse effect could follow a direction to release the reports, because co-operation would still have to be forthcoming from teachers and staff in schools because of their statutory obligations in that regard.
I believe he was absolutely correct in so holding.
On the hearing of this appeal, counsel for the appellant argued that the finding of the Commissioner on this point was unsupported by any evidence and, secondly, the mere fact that s.13 compelled compliance did not of itself mean that s. 21(1)(a) could never apply. He submitted that the overall effectiveness of the inspection regime might well be hampered if information which would otherwise be volunteered by teachers would not be forthcoming for the very good reason that it is likely to wind up in the particular tuairisc scoile of that school and, in turn, if it were to be published more widely following a successful Freedom of Information Act request in respect of the particular school report.

It was further suggested that the Commissioner, having failed to carry out an analysis on proper evidence under s.21(a) or (b) could not then proceed to apply the public interest consideration contained at s.21(2).
In my view the onus to produce evidence of prejudice fell on the Department and in the absence of same the Commissioner was entitled, under s. 34 of the Act of 1997, to hold against the Department. A mere assertion of an expectation of non co-operation from teaching staff could never constitute sufficient evidence in this regard, particularly in the circumstances shown to apply, namely, that as a consequence of both Circular 12/83 and s.13 of the Act of 1998, there was no choice left to schools or their staff as to whether or not to co-operate with the Department’s inspectors in terms of furnishing the information sought.
Nor do I believe that any exhaustive analysis conducted by reference to detailed evidence was necessary before the Commissioner could decide to apply the public interest provision of s. 21(2) to direct release of the reports. Once there was some evidence before him as to the circumstances in which these reports are compiled, as undoubtedly was the case here, the well established principles of O’Keeffe v an Bord Pleanala [1993] 1 I.R.391 make it clear that his decision is not to be interfered with. This assessment, which involved a balancing exercise between various competing interests, was one uniquely within his particular remit.
I would dismiss this ground of appeal

S. 26 of the Act of 1997
The learned trial judge also upheld the Commissioner on the ‘confidentiality’ arguments and, again, I am in complete agreement with the learned trial judge on this issue.
Section 26 (1) (a) is triggered where information is given or imparted in confidence, so that the Commissioner’s first task was to inquire and assess whether or not the material or information going into the tuairisci scoile had that quality or not. It is agreed by both parties to the appeal that he applied correct legal principles, as set out by Megarry J in Coco v A. N. Clarke (Engineers) Limited [1968] F.S.R. 415, in performing this function.
He took the position that while some of the views might have been imparted to the inspectors in confidence, he thought it unlikely given the purpose of the reports and the circumstances of their creation. However, he went further and based his decision on his own reading of the reports. Having examined the contents of the reports, he was thus in a position to state that he was satisfied that they did not contain any information that could be said to have been imparted in circumstances imposing an obligation of confidence or have the necessary quality of confidence about it. He thus felt that by virtue of s. 26 (2) the exemption in s.26(1) could not apply. He had earlier, of course, found that there was no agreement or enactment in relation to the matter which would bring s. 26(1)(a) into consideration.
In reaching his decision the Commissioner had careful regard to the fact that the reports were prepared by inspectors in the course of their statutory functions and that they represented the fruits of the inspectors’ own opinions and observations formed during the course of their visits to the schools. He concluded, as in my view he was entitled to do, that these opinions and observations were not imparted to them by anyone. He further noted that much of the information would in any event already have been in the possession of the Department and that it did not consist of private or secret matters.
I would also dismiss this ground of appeal

BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/ie/cases/IESC/2005/S35.html