Introduction

The case of Director of Public Prosecutions v Information Commissioner (Approved) [2021] IEHC 752 was adjudicated by the High Court of Ireland on December 10, 2021. This statutory appeal questioned a decision by the Information Commissioner concerning access to specific records held by the Department of Public Expenditure and Reform. The central legal issue revolved around the interpretation of Section 42(f) of the Freedom of Information Act 2014, particularly whether a record held by one Freedom of Information (FOI) body is exempt from disclosure simply because a duplicate is held by the Director of Public Prosecutions (DPP).

The parties involved were:

• Appellant: Director of Public Prosecutions
• Respondent: Information Commissioner
• Notice Parties: Department of Public Expenditure and Reform, Mark Tighe

Summary of the Judgment

The High Court upheld the decision of the Information Commissioner, which denied the appellant's request for access to certain correspondence between the Department of Public Expenditure and Reform and the DPP regarding fees payable to counsel. The crux of the judgment centered on whether these records were exempt under Section 42(f) of the Freedom of Information Act 2014. The Information Commissioner had determined that while the DPP’s own records were exempt, the Department's copies of those records were not. The High Court affirmed this interpretation, establishing that each FOI body holds separate records, and the existence of a duplicate in another FOI body does not render a record exempt if it is lawfully held and not created by the DPP.

Analysis

Precedents Cited

The judgment extensively referenced the Supreme Court case Minister for Health v. Information Commissioner [2019] IESC 40, which clarified the meaning of "held" under the FOI Act. Additionally, the High Court cited Minister for Justice v. Information Commissioner [2001] IEHC 35 to illustrate the interpretation of records under previous legislation. These precedents underscored that merely possessing a duplicate does not equate to holding the original record within the meaning of the Act.

Legal Reasoning

The High Court adopted a literal and purposive approach to statutory interpretation. It emphasized that records are treated independently by each FOI body holding them, regardless of duplicates elsewhere. The court rejected the appellant's argument that the existence of a duplicate with the DPP should confer an exemption on the Department's records. It reasoned that such an interpretation would undermine the legislative intent of the FOI Act, which balances access to information with the need to protect sensitive data.

The court highlighted that Section 42(f) specifically excludes records "held" or "created" by the DPP. However, holding a separate copy does not transform the Department's records into records held by the DPP. Therefore, the Department must comply with access requests unless another specific exemption applies.

Impact

This decision reinforces the principle that each public body must independently assess access requests based on their possession of records, irrespective of duplicates held by other entities. It prevents FOI bodies from circumventing disclosure obligations by relying on exemptions applicable to other bodies. Consequently, the ruling promotes greater transparency and ensures that access rights are not unduly restricted.

Complex Concepts Simplified

Freedom of Information Act 2014

The Freedom of Information Act 2014 grants the public the right to access records held by public bodies, promoting transparency and accountability in government operations.

Section 42(f)

This section specifically exempts records held or created by certain legal offices, including the Director of Public Prosecutions, from being accessed under the FOI Act, except for records related to general administration.

Statutory Interpretation

Statutory interpretation involves the process by which courts interpret and apply legislation. A literal approach focuses on the plain meaning of the words, while a purposive approach considers the broader intent behind the law.

Legal Professional Privilege

This is a legal principle that protects communications between legal advisors and their clients from being disclosed without consent.

Conclusion

The High Court’s decision in Director of Public Prosecutions v Information Commissioner [2021] IEHC 752 significantly clarifies the application of Section 42(f) of the Freedom of Information Act 2014. By affirming that records held by one FOI body are not exempt due to duplicates held by another, the judgment upholds the integrity of the FOI framework. It ensures that public access to information cannot be easily circumvented, thereby enhancing transparency. This precedent will guide future cases involving record exemptions and access rights, reinforcing the balance between public interest and the protection of sensitive information.

Key Takeaways:

• Each FOI body independently holds and must assess its records regarding access requests.
• Duplicates held by different FOI bodies do not trigger exemptions unless specifically created by the exempting office.
• The judgment reinforces the FOI Act’s intent to balance transparency with the protection of sensitive information.
• Legal professional privilege and other specific exemptions continue to play a critical role in determining access.