The Irish Times Law Report: Barney Sheedy (appellant) v Information Commissioner (respondent), Minister for Education and Science and Irish Times (notice parties).
Freedom of Information -Information Commissioner - Statutory interpretation - Words and phrases - "Notwithstanding any other enactment" clause - Whether provisions of Freedom of Information Act should inform interpretation of provision of Education Act 1998 - Whether release of school reports compiled by Department of Education would enable compilation of information in respect of comparative performance of schools - Freedom of Information Act 1997 (No. 13), ss. 32(1), 34(2) and 42(1) - Education Act 1998 (No. 51), s. 53.
The Supreme Court (before Ms Justice Denham; Mr Justice Fennelly; Mr Justice Kearns); judgments delivered May 30th, 2005.
Section 53 of the Education Act 1998 provides that:-
"Notwithstanding any other enactment, the Minister may refuse access to any information which would enable the compilation of informationin relation to the comparative performance of schools in respect of the academic achievements of students enrolled therein . . ."
Section 32(1) of the Freedom of Information Act 1997 provides that a request for disclosure of a record shall be refused:-
"if (a) the disclosure of the record concerned is prohibited by any enactment or (b) the non-disclosure of the record is authorised by any such enactment . . ."
The first notice party, on a request to it by the second notice party, refused to grant access to reports relating to various schools on the basis that section 53 of the Education Act 1998 and sections 21(1)(a), 26(1) and 28 of the Freedom of Information Act 1997 applied thereto. The respondent, on an appeal to it by the second notice party, set aside the decision of the first notice party and directed that access be given to redacted versions of the reports for five schools, including Scoil Choilm. The appellant, who was the principal of Scoil Choilm, appealed the decision of the respondent to grant access to the report in respect of Scoil Choilm to the High Court on the basis that the exceptions provided for in sections 21(1)(a) and 26(1) of the Act of 1997 and section 53 of the Act of 1998 applied to the information contained therein. The High Court (Gilligan J.), in refusing the appeal and orders sought thereunder, adopted the reasoning of the Commissioner on the issue which held that the appellant had failed to demonstrate that granting access to the reports would enable the compilation of information in relation to the comparative performance of schools in respect of academic achievements, as any such comparisons would be highly subjective, and, as such, the information contained in the reports would not breach the provisions of section 53 of the Act of 1998 and it was on that ground that access to the reports were not exempt under section 32(1) of the Act of 1997. The appellant appealed to the Supreme Court against the decision of the High Court.
Because of the use of the phrase "notwithstanding any other enactment" in section 53 of the Act of 1998, it was impossible to construe the Acts of 1997 and 1998 together or as forming part of a continuum and section 53 took precedence over any provision of the Act of 1997. The Acts of 1997 and 1998 were not in pari materia and a construction on section 53 which would yield an interpretation which fitted the aims and policies of the Act of 1997 could be not forced. The general words of section 53 went further than exam results and the reference to comparative performance of schools included a range of other considerations.
The Supreme Court (Mr Justice Fennelly dissenting) so held in allowing the appeal.
Gerard Hogan SC and Peter Ward BL for the appellant; Bill Shipsey SC and Emily Egan BL for the respondent; Donal McGuinness BL for the first notice party.
MR JUSTICE FENNELLY: In his judgment Mr Justice Fennelly adopted the summary of the facts and procedural history of the appeal set out in the judgment of Mr Justice Kearns and agreed with his proposal that the grounds of appeal based on sections 21 and 26 of the Freedom of Information Act 1997 should be dismissed. He differed only in respect of the treatment of section 32 of that Act, read with section 53 of the Education Act 1998. By passing the Freedom of Information Act 1997, he said that the Oireachtas took a deliberate and considered step which dramatically altered the centuries old administrative assumptions and culture of secrecy and replaced it with one of transparency. Section 6(1) of the Act of 1997 gave effect to the general principle of public access to documents "to the greatest extent possible consistent with the public interest and the right to privacy".
Mr Justice Fennelly noted that this was the first appeal under the Act to come before the Supreme Court and he felt it important to bear in mind that the appeal, concerning a point of law, came before the court through the mechanisms and procedures of the Act of 1997 and not otherwise.
A principal submission on behalf of the appellant was that, by section 53 of the Education Act 1998, the Oireachtas had decided to disapply the Act of 1997 in respect of information covered by the Act of 1998. For the purposes of statutory interpretation and, in particular, for the purposes of being affected by subsequent legislation, the appellant argued that the Act of 1997 should be treated like any other Act of the Oireachtas and the Court should not interpret section 53 of the Act of 1998 by reference to or by importing into it the general principles underlying the Act of 1997. Mr Justice Fennelly said that the submission of the respondent that, in a freedom of information context, the relevant question was whether a particular statutory non-disclosure provision applied by reference to section 32 of the Act of 1997, however, was correct and that the dispute as to the disclosure of the inspectors' reports came before the court exclusively as an appeal pursuant to, and employing the machinery of, the Act of 1997. The Act of 1997 gave the Information Commissioner jurisdiction and the court in entertaining an appeal pursuant to that Act had to consider it in that context.
Referring to the argument of counsel for the appellant which was to the effect that, based on the introductory phrase in section 53 of the Act of 1998 reading: "notwithstanding any other enactment . . .", the Act of 1997 was dis-applied by section 53, Mr Justice Fennelly said that the appropriate course for the appellant or the Minister to have taken to support that contention would have been to apply by way of judicial review of the Commissioner's decision. The machinery of appeal to the Superior Courts could not be used to challenge the very basis of the jurisdiction of the Commissioner and the applicability of the Act of 1997. For that reason alone, Mr Justice Fennelly stated that the argument of the appellant was misconceived as it was an appeal pursuant to the Act of 1997 and he dismissed the appeal on that basis.
Even if the matter were procedurally regularly before the Court, for example by way of judicial review, Mr Justice Fennelly said that it would be correct to hold that the Oireachtas had not intended, in enacting section 53 of the Act of 1998, to amend the Act of 1997. A more realistic and harmonious interpretation was that it intended to adopt legislation which, subject to operation of the procedures of the Act of 1997, would enable the Minister to refuse disclosure of records. He came to that conclusion by applying the maxim of statutory interpretation, generalia specialibus non derogant to his finding that section 53 of the Act of 1998 was the general provision and the Act of 1997 the more specific on the subject of freedom of information and the disclosure of records.
In deference to the appellant's arguments on the point, Mr Justice Fennelly also stated that section 53 of the Act of 1998 was, in any event, a provision of the type provided for in section 32(1) of the Act of 1997 allowing for discretionary refusal of documents by the Information Commissioner. Bearing in mind the statutory presumption in favour of disclosure in the Act of 1997, the fact that the Commissioner's conclusion that the records were not exempt from disclosure was one of fact and the principle 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, Mr Justice Fennelly said that the Commissioner's conclusion that the reports did not come within section 53 was not unreasonable to the standard required to enable the court to disagree with him in the context of an appeal on a point of law.
MR JUSTICE KEARNS: In his judgment Mr Justice Kearns stated that the second notice party had applied under the Freedom of Information Act 1997 for access to a number of school reports, inclding that in respect of the school where the appellant was the headmaster. The first notice party had refused to grant such access, having regard, inter alia, to section 53 of the Education Act 1998 and sections 21 and 26 of the Act of 1997. On a review of that decision under section 34(2) of the Act of 1997, the respondent set aside the first notice party's decision. The appellant appealed the respondent's decision to the High Court under section 42(1) of the Act of 1997. The High Court (Gilligan J.) found in favour of the respondent on the same grounds as the respondent.
Mr Justice Kearns summarised the grounds of appeal to the Supreme Court as being that the trial judge erred in law in his interpretation and/or application of section 53 of the Act of 1998 and sections 21(1), 21(2), 26 and 32(1) of the Act of 1997.
Mr Justice Kearns said that the first and second grounds of appeal concerned section 53 of the Act of 1998 and section 32(1) of the Act of 1997 and should be dealt with together. The essence of the case was whether the interpretation given first by the Information Commissioner and later by the High Court to section 53 of the Act of 1998 was correct or otherwise. He referred to a portion of the High Court decision which adopted the reasoning of the Commissioner on the issue which held that the appellant had failed to demonstrate that granting access to the reports would enable the compilation of information in relation to the comparative performance of schools in respect of academic achievements, as any such comparisons would be highly subjective, and, as such, the information contained in the reports would not breach the provisions of section 53 of the Act of 1998. And it was on that ground that access to the reports were not exempt under section 32(1) of the Act of 1997. What that conclusion did not address was the meaning and appropriate construction to be given to section 53 of the Act of 1998 which had been evaluated exclusively through the prism of section 34(12) and 32(1)(a) of the Act of 1997. The issue was whether section 32 of the Act of 1997 could inform the interpretation of section 53 of the Act of 1998, the critical portion of which read: "Notwithstanding any other enactment, the Minister may refuse access to any information . . ."
The use of a "notwithstanding clause" was a convenient form of drafting which avoided textual amendments to existing legislation but nonetheless operated by implication to bring about amendments or repeals of such legislation in accordance with the maxim leges posteriors priores contrarias abrogant. Because of the "notwithstanding clause" in section 53 it seemed impossible to Mr Justice Kearns to construe the Acts of 1997 and 1998 together or as forming part of a continuum. Referring to Bennion on Statutory Interpretation (3rd ed.), he said that the word "notwithstanding" underlined the free-standing nature of the provision thereafter set out in section 53.
As the two acts were not in pari materia, the court could not force a construction on section 53 of the Act of 1998 so as to yield an interpretation which fitted the aims and policies of the Act of 1997 when there was no ambiguity in the opening words of section 53. It overrode any provision of the Act of 1997, unless it could be shown that the school reports did not come within the protection offered by section 53. In that regard, Mr Justice Kearns said that though it was common case that the information gathered did not contain examination results, the general words of section 53 went further and the reference to "comparative performance of schools in respect of academic achievement of students" included a range of other considerations in respect of which comparisons between different schools could still be drawn up. It was not open to the respondent to dis-apply the general words of section 53 by introducing the concept of subjectivity to downplay any comparison between schools that might be drawn from the release of the information in the reports. For those reasons, Mr Justice Kearns allowed the appeal on the point raised in respect of section 53.
Addressing the ground of appeal raised in respect of section 21 of the Act of 1997, Mr Justice Kearns said that the High Court was correct in holding that the appellant had not discharged the onus of showing that a significant adverse effect on the performance of the school could result from the granting of access to the records sought, which was a ground for refusing access under section 21 of the Act of 1997. The onus to produce evidence of prejudice fell on the Department of Education and, in the absence of such, the Commissioner was entitled, under section 34 of the Act of 1997, to hold against the Department. Mr Justice Kearns therefore dismissed that ground of appeal.
Mr Justice Kearns was also in agreement with the High Court in upholding the Commissioner's conclusions on the confidentiality arguments made in respect of section 26 of the Act of 1997. He said that the exemption provided for in section 26(1) was triggered where information was given in confidence and the Commissioner was entitled to determine that the information going into the reports did not have that quality. He therefore dismissed that ground of appeal also.
Ms Justice Denham agreed with the judgment of Mr Justice Kearns.
Solicitors: Fawsitt ( Dublin) for the appellant; Mason Hayes and Curran ( Dublin ) for the respondent; The Chief State Solicitor for the first notice party.
Paul Christopher, barrister