Quinn Mc Donagh v Information Commissioner (Approved)

Factual and Procedural Background

The appellant initiated a statutory appeal seeking to set aside the decision of the Information Commissioner dated 19th July 2023. The decision refused a request made by the appellant's solicitors for access to records concerning (i) a breakdown of all An Garda Síochána stops and searches from 1st January 2022 to 1st January 2023 in the Dundalk/Louth district, (ii) the legal provisions underpinning those stops and searches, and (iii) a breakdown of the stops and searches by age, gender, and ethnicity. The High Court refused the appellant's appeal in a principal judgment delivered in 2024. This opinion concerns the subsequent costs application arising from that judgment.

Legal Issues Presented

1. Whether the court should exercise its discretion under section 169 of the Legal Services Regulation Act 2015 and section 24(7) of the Freedom of Information Act 2014 to make a modified costs order given the public interest nature of the appeal.
2. Whether the point of law raised in the appeal was of exceptional public importance to justify departing from the default rule that costs follow the event.
3. Whether the appellant was entitled to costs against the Garda Commissioner, a notice party in the appeal.

Arguments of the Parties

Appellant's Arguments

• Section 169 of the Legal Services Regulation Act 2015 allows for a modified costs order in cases involving issues of exceptional public importance or public interest.
• The appeal raised a novel statutory interpretation issue regarding Part 1 of Schedule 1, paragraph (n) of the Freedom of Information Act 2014.
• The request for statistical data on Garda stops and searches was in the public interest to ensure accountability and transparency of An Garda Síochána, including scrutiny of potential systemic issues such as racial profiling.
• The principal judgment clarified the parameters for disclosure of such data, benefiting public oversight.
• Ordering costs against the appellant would have a chilling effect on future public interest appeals seeking transparency from public bodies.

Respondents' Arguments

• The default position under section 169(1) of the 2015 Act applies, meaning costs should follow the event as both the Information Commissioner and Garda Commissioner were entirely successful.
• The point of law argued by the appellant did not meet the threshold of exceptional public importance to warrant a departure from the default costs rule.
• The Garda Commissioner's participation was limited and proportionate, and as a notice party, costs should be awarded in their favour.
• The appeal did not challenge the constitutionality of any exemption under the Freedom of Information Act 2014, nor did it raise or determine issues of racial profiling.
• The Garda Commissioner is not an "FOI body" under the 2014 Act as his decisions were not administrative decisions subject to the Act's provisions on costs.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by acknowledging the default rule under section 169(1) of the Legal Services Regulation Act 2015 that costs follow the event, subject to the court's discretion based on the nature and circumstances of the case. It considered the provisions of section 24(7) of the Freedom of Information Act 2014, which allow for costs orders against FOI bodies in cases of points of law of exceptional public importance.

The court examined whether the appeal raised a point of law of exceptional public importance. It found no ambiguity in the statutory provisions at issue, specifically Part 1 of Schedule 1, paragraph (n) of the 2014 Act, and determined that the appeal involved a straightforward interpretation of the Act. The court rejected the appellant's characterization of the requested records as administrative records relating to human resources, concluding that the records were excluded from the FOI Act's provisions.

The court further considered established case law, including the principles restated in Little v Chief Appeals Officer and Jackson Way Properties Ltd, to guide its discretion on costs. It found that the appeal did not satisfy the criteria for exceptional public importance, novelty, or systemic significance. The court also noted that there was no evidence that the appeal constituted a test case or that it raised constitutional challenges or issues of racial profiling as contended by the appellant.

Consequently, the court exercised its discretion to order that the appellant bear the costs of both the Information Commissioner and the Garda Commissioner, as the respondents were entirely successful and the appeal did not meet the threshold for a modified costs order.

Holding and Implications

The court ORDERED that:

• The Information Commissioner is entitled to its costs against the appellant, including reserved costs to be adjudicated if not agreed.
• The Garda Commissioner is entitled to his costs against the appellant, including reserved costs to be adjudicated if not agreed.
• Any execution of the costs orders will be stayed pending any appeal or further order from the Court of Appeal.

The direct effect of this decision is that the appellant must pay the costs incurred by both respondents in the appeal. The court did not find that the appeal raised issues of exceptional public importance warranting a departure from the usual rule that costs follow the event. No new precedent was established, and the ruling reinforces the principle that public interest litigation must meet a high threshold to benefit from modified costs orders.