No statutory right of appeal against Information Commissioner’s discontinuation of review

The Court of Appeal in Kelly v The Information Commissioner [2015] IECA 270 upheld the High Court's finding that no statutory appeal lay from the discontinuance of a review by the Information Commissioner (the IC).  The Court held that the only mode of challenging the discontinuance was by way of judicial review.

The Facts
The appellant brought this appeal against an order of O'Malley J. in the High Court on 7 October 2014. The proceedings arose out of a dispute between the appellant and UCD which originated in 2001 when he applied for a place on a Social Science course. The appellant subsequently applied to UCD under the Freedom of Information Acts 1997 & 2003 (FOI Acts), and made seven applications to the IC for review of decisions by UCD refusing him access to certain records. The IC initially embarked on a review of those decisions but subsequently exercised her discretion under section 34(9)(a) of the FOI Acts to discontinue the review on the ground that his applications, or the FOI requests to which they related, were vexatious.  The appellant then appealed to the High Court against the discontinuation of the review, seeking to exercise a right under section 42(1) of the FOI Acts.

The IC resisted the application to the High Court on the ground that an appeal does not lie to the High Court under section 42(1) in respect of a discontinuation of a review pursuant to section 34(9)(a).  O'Malley J. at the High Court accepted that submission as being sound in law and held that the appellant did not have a statutory right to appeal. She also cited with approval the case of Nowak v Data Protection Commissioner [2012] IEHC 449 concerning analogous provisions contained in the Data Protection Acts 1988 & 2003. (It's worth noting, however, that Nowak is subject to appeal – see our update here). O'Malley J. stated that the appellant was not without remedy as he could apply for judicial review if he was aggrieved and was able to show the ground for such an application.

The Law
Section 34(2) of the FOI Acts provides the IC with the power, on an application to him or her, to review a decision of a public body, and following the review, to affirm or vary the decision, or annual it and make such decision as he or she thinks appropriate. 

Section 34(9) gives the IC a discretion to refuse to grant an application for review, or to discontinue a review, if he or she becomes of the opinion that the application, or FOI request to which it relates, is frivolous or vexatious. 

Section 42(1) provides that a party to a review or any other person affected by the decision of the IC "following such a review" may appeal to the High Court on a point of law from the decision.

The Decision
The Court of Appeal dismissed the appeal. It held that O'Malley J. in the High Court was correct in her decision that no appeal lay from the discontinuance by the IC of the review. The statutory right of appeal in section 42(1) is conditional on a review coming to a conclusion. It does not apply in circumstances where the process of review stopped and there was no decision by the IC.

Comment
This decision continues to be of relevance following the implementation the Freedom of Information Act 2014, which contain similar provisions to section 34(2) and (9) and section 42(1), in sections 22(2) and (9) and section 24 respectively.

For further information please contact Davinia Brennan at dbrennan@algoodbody.com.

Date published: 15 December 2015