High Court Rules on Procedural Errors in Information Commissioner Appeal

The High Court recently heard an appeal claiming that the Information Commissioner’s decision-making lacked procedural fairness. Ms Justice Phelan considered these arguments but ultimately rejected them. The claims included a failure to notify the IDA about the material the Commissioner would rely on and to provide an opportunity to comment. It was also argued that the Commissioner did not give sufficient reasons for his decision. We review the implications for those in the public sector.

What you need to know

• The High Court's ruling in IDA v Information Commissioner is the latest Superior Court decision on an appeal concerning a point of law under section 24 of the Freedom of Information (FOI) Act.
• Two years earlier, the Court of Appeal in Grange v Information Commissioner left open the question of whether a section 24 appeal could properly address claims of procedural unfairness. It also left for future decision whether these issues should instead be dealt with through judicial review. The High Court was expected to clarify this point in a later case.
• After Grange, procedural grounds have been entertained by the High Court in section 24 appeals, in Ms T v Information Commissioner, and in IDA.
• In both Ms T and IDA, the Information Commissioner did not appear to object to the appellants raising procedural fairness as a ground of appeal.
• It is unclear whether the Information Commissioner’s apparent lack of objection suggests acceptance that his decisions can be appealed under section 24 on procedural fairness grounds. However, if he does accept this, it would be consistent with legal precedent.

It remains uncertain whether this issue is now settled, as both practice and precedent suggest, or if it could still be raised and decided in a future case.

Introduction

By considering appeal grounds based on procedural fairness issues, the High Court in IDA v Information Commissioner appears to support the view that section 24 of the FOI Act allows for appeals on such grounds.

This is not the first time such grounds have been considered and adjudicated upon in FOI Act appeals.

For example, in South Western Area Health Board v Information Commissioner, the High Court held that:

“…natural and constitutional justice and fair procedures required that [the person concerned] be given an opportunity to make representations prior to the decision being taken by the Commissioner. His failure to do so [was] procedurally unfair and the decision made as a result [could not] stand”.

In National Maternity Hospital v Information Commissioner, the High Court found that the Information Commissioner had not breached fair procedures, as alleged. However, the Court appeared to accept that lack of procedural fairness could be a valid ground of appeal.

In UCC v Information Commissioner, the High Court expressed the view that it would require “some persuasion that judicial review proceedings should have to be instituted in addition to a statutory appeal” to deal with procedural fairness-based grounds of appeal.

These cases all pre-dated the Court of Appeal decision in Grange v Information Commissioner.

Grange v Information Commissioner

In Grange, Mr Justice Haughton noted that there was an argument that complaints about fair procedures should be addressed through judicial review, rather than appeal, proceedings. However, he observed that this argument had not been raised in the High Court, was not considered in the judgment under appeal, and was not rehearsed before the Court of Appeal.

It did not, therefore, arise for decision in the appeal, and the Court proceeded “on the assumption that the High Court, and this court, [had] jurisdiction to decide the fair procedures issue”. It noted that it would be “for the High Court in a future case to consider whether it [was] appropriate to raise and determine a ‘want of fair procedures point’ in a statutory appeal under s.24”.

Ms T v Information Commissioner

A few months after Grange was decided, the High Court considered a section 24 appeal that raised a procedural fairness issue in Ms T v Information Commissioner. Ms Justice Hyland accepted this argument and ruled in favour of the appellant. She found the procedural fairness issue to be decisive in the case:

“I therefore conclude that the Commissioner ought to have conveyed the substance of the letter of 26 February 2021 to Ms. T to obtain her views on same, and ought to have taken that explanation into account when adjudicating on the appeal against the hospital's decision to refuse to amend the letter of 18 March by adding an addendum. By failing to observe fair procedures and by failing to take into account material information, the Commissioner erred in law. Because of my conclusion in this respect, it is unnecessary to consider Ms. T's other arguments in relation to the Commissioner's decision”.

IDA v Information Commissioner

More than a year later, in the IDA case, the next procedural fairness appeal came before the High Court. Before Ms Justice Phelan it was argued, among other issues, that the Information Commissioner had made two legal errors:

• He had failed to notify the IDA that he would rely on a particular ministerial Circular in his decision and did not give the IDA an opportunity to comment on this material.
• He had failed to explain why he relied on the Circular. He had also not provided reasons for rejecting the IDA’s position that certain information was exempt from disclosure under specific provisions of the FOI Act. Additionally, he did not explain why he concluded that public interest considerations outweighed those exemptions.

Again, the Commissioner does not appear to have raised any objection to the raising of fair procedures grounds in the appeal, and the Court did not comment on this aspect either. The Court went on, however, to dismiss the ‘no notice/no opportunity to comment’ and ‘failure to provide adequate reasons’ arguments on their merits.

On the issue of notice and the right to be heard, the Court found that although the Information Commissioner did not explicitly notify the IDA, the IDA was already aware that the Circular would be relied on and understood its potential relevance. It stated that, to succeed, an appellant would need to show a “genuine and real prejudice by reason of the procedural failure complained of”, which was not the case here.

The Court also stated that when assessing a claim of inadequate or absent notice as a fatal procedural error, it would consider two key factors:

1. What arguments the appellant would have made if given notice, and
2. the significance of the unnotified material in connection with the issues being decided.

Here, the Circular was “neither a new document nor one which radically altered matters under consideration.” Additionally, the argument the IDA told the Court it would have made was ultimately not relevant to the issue.

Regarding the Commissioner’s failure to provide adequate reasons for (a) considering the Circular relevant and (b) not addressing certain arguments made by the IDA about exemptions and public interest considerations, the Court adopted a context-specific and holistic approach. It considered both the factual and legal background of the case in making its assessment.

Ms Justice Phelan accepted that there was a well-established duty to give reasons, and said that:

“[r]easons [were] to be assessed by reference to what a reasonable person with full knowledge of the background would conclude by reading the relevant text”.

The Court then referred to previous case law which held that there was flexibility regarding the level of detail required; that “reasons may be found anywhere”; “there was no obligation to ‘engage with submissions in the sense of some sort of discursive, hand-to-hand combat sense, as distinct from the obligation to give reasons.”; “a decision-maker [was] not required to give a discursive determination along the lines of what might be expected in a superior court judgment…”; and that there was “no legal requirement to state reasons for what is obvious”.

The Court also pointed out that:

“[t]he obligation to engage with submissions made [was] heightened where material and relevant submissions [were] made, such that a properly reasoned decision should address the relevant considerations identified. Where a sufficiently cogent case requiring consideration [was] not advanced, the obligation to provide extensive reasoning [was] reduced in consequence. In other words, the stronger the case made, the greater the requirement to justify a refusal to accept that case”.

Ms Justice Phelan also acknowledged that the FOI Act included several unique provisions that affected how detailed the Commissioner’s decisions needed to be. These provisions included ones mandating the taking of information-disclosure precautions, which inevitably influenced the extent of the reasoning that could be contained in the decision.

The Court concluded that the decision was adequately reasoned, noting among other things that:

• The written decision ran to 17 pages.
• The decision stated that the IDA had failed to meet the burden of justifying the non-disclosure of information. While the reasoning here was not detailed, this in itself served as a reason for the decision.
• The decision set out some reasons for not considering exemptions to apply. These reasons included opinions on what could result from disclosing the records and the IDA’s failure to explain how the alleged harms might arise. It also highlighted the public interest that outweighed any potential harm said to arise from disclosure.
• Certain submissions made by the IDA to the Commissioner were generic, non-specific and weak.
• Regard should be had to the terms of the decision and the record of the decision-making process, including the submissions and correspondence exchanged. It should also take into account the colour-highlighted redactions made by both the IDA and the Commissioner to the records at issue.
• The IDA had the two records in question, which were redacted in a clear and selective manner using colour highlighting. The redactions illustrated which information was considered exempt and which should be disclosed on public interest override grounds. They also highlighted the areas of disagreement between the Commissioner and the IDA.
• The IDA did not give evidence that it could not understand the decision, or that it lacked enough information to consider whether it could or should seek to avail of any appeal. Moreover, The IDA was able to set out 21 appeal grounds.

Conclusion

Various decisions of the High Court, in appeals against decisions of the Information Commissioner under section 24 of the FOI Act, have considered grounds based on procedural fairness. Although the Court of Appeal in the Grange case mentioned the possibility that the High Court might decide in a future case whether such grounds could properly be included in a section 24 statutory appeal, it appears that this point may not have been raised by the Information Commissioner in subsequent appeals. As a result, it has not been decided by the High Court in any cases since Grange. Whether the Information Commissioner might question the pleading of procedural grounds in a future section 24 appeal is not clear. However, the practice to date, and in particular, in the cases after the ‘prompt’ in Grange, seems to suggest that this may not now occur.

Acceptance that the appeal in section 24 of the FOI Act does accommodate procedural fairness-based appeal grounds would accord with precedent generally.

In Attorney General v Davis, the Supreme Court stated that:

“a statutory right of appeal on a point of law will [ordinarily] include….[e]rrors such as would give rise to judicial review including ….defective or no reasoning, procedural errors of some significance, etc.”.

Subsequently, in Chubb European Group SE v HIA, it was stated that:

“[i]t must follow [from the ruling in Davis] that - absent some unusual limitation arising from the terms of the statute conferring the right of appeal – the presumption is that an appeal of this kind is intended to both supplant and enlarge the remedies provided for by way of an application for Judicial Review”.

Similarly, in O’Sheehan v RTA it was pointed out that:

“[t]he Supreme Court [in Davis] ha[d]confirmed that an appeal on a point of law encompasse[d] errors such as ‘defective or no reasoning’”.

While it is still possible that the question of whether procedural errors can be raised in an appeal under section 24 of the FOI Act will be directly addressed in a future case, both practice and legal authority suggest that the issue is, or should be, considered settled. It seems that raising procedural fairness issues is now accepted as being permitted.

For more information and expert advice, please contact a member of our Public, Regulatory & Investigations team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.