Ireland: Presumption Of Disclosure Of Records Under FOI Does Not Apply To Exempted Records

Last Updated: 23 April 2019
Article by Colin Rooney, Ciara Anderson and Caoimhe Stafford
Most Read Contributor in Ireland, July 2019

Private sector businesses contracting with State bodies will welcome a recent judgement of the Court of Appeal, which effectively reverses the burden of proof in relation to the release of exempt records under the Freedom of Information Act 2014 (the "Act").

In Minister for Communications, Energy and Natural Resources v The Information Commissioner and e-NASC Eireann Teoranta [2017] IECA 68, the Court of Appeal ruled that the Information Commissioner (the "Commissioner") erred in ordering the release of certain exempt records as it found the Commissioner wrongly decided that the presumption in favour of disclosure applied to records which were subject to an exemption under the Act.

Presumption in favour of disclosure

Section 22(12)(b) of the Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified (and therefore records should be disclosed) unless the FOI body shows to the satisfaction of the Commissioner that the decision was justified. This is referred to as the presumption in favour of disclosure. This presumption was previously understood to apply to all decisions to refuse disclosure, including those in respect of records subject to an exemption from disclosure and where the FOI body determined that the public interest would be better served by refusing to grant a request to disclose such an exempt record.

Commissioner's decision

In this case, the Minister of Communications, Energy and Natural Resources refused to release certain records, namely contracts with e-NASC Eireann Teoranta ("enet"), a telecommunications provider, on the basis of exemptions relating to confidentiality and commercial sensitivity (sections 35 and 36 of the Act).

This decision was subsequently appealed to the Commissioner, who found, in relation to commercially sensitive information, that the Minister had failed to rebut the presumption that the records should not be released. The Commissioner also decided that the Minister had not shown that there was a "reasonable expectation" of material loss accruing to enet, and as such, the first limb of section 36(1) did not apply. The Commissioner determined that the records should be disclosed on the basis of section 36(3) of the Act, which provides for the release of commercially sensitive records where the public interest is, on balance, better served by granting rather than refusing the request, noting that non-disclosure of such information would only be justified in "exceptional circumstances".

Exempt records and the presumption

When the Minister appealed the Commissioner's decision, the High Court reiterated that the presumption in favour of release applied to exempt records. This decision was subsequently appealed to the Court of Appeal, which considered, among other points, the applicability of the presumption to exempt records and the public interest test balancing exercise.

The Commissioner argued that section 22(12)(b) of the Act (the presumption in favour of disclosure) was worded very clearly and chimed with the overall spirit of transparency in the Act. The Minister however, suggested that nothing in the Act provides access to exempt records where the exemption is mandatory. It is important to note that the applicability of the commercial sensitivity exemption was not at issue. The only matter at issue was the applicability of the public interest test and how it sat with the presumption in favour of disclosure.

The Court of Appeal accepted that while the provisions relating to disclosure in the Act were clear, the provisions dealing with exempt records in the Act were equally clear and held that the Commissioner therefore approached the task on an incorrect legal basis. Given the weight that the Commissioner attached to the presumption in his decision, the Court concluded that the Commissioner made a "significant" error in applying the presumption to exempt records.

Exceptional circumstances

The Minister also claimed the Commissioner had applied the wrong test in deciding to release the records. Given that the Commissioner had accepted that enet's competitive position could be prejudiced by disclosure (satisfying section 36(1)(b) of the Act), requiring "exceptional circumstances" to be established to justify non-disclosure was an error. The Court of Appeal agreed and found that the Commissioner had unilaterally read the "exceptional circumstances" requirement into the law where it had not been before.

Test for "prejudicing the competitive position"

The Court found that, somewhat more seriously, the Commissioner fundamentally erred in requiring the Minister to demonstrate that releasing the records would "totally undermine" enet's business. In the Court's view, this would be far too high a threshold to meet to prevent disclosure. The judgement notes that the business of a company engaging with the State being "totally undermined" should not be a requirement to justify non-disclosure. The Court held that this was an error of real importance, such that the decision could not be allowed stand.

Key takeaways

Businesses will welcome the Court of Appeal's commentary in relation to the threshold that FOI bodies must meet to prevent disclosure of records. The Court of Appeal recognised the commercial reality that the imposition of overly onerous standards, requiring "exceptional circumstances" that "totally undermine" the business so as to justify non-disclosure of commercially sensitive information, would be unsatisfactory and wrong. Such requirements would have the undesirable effect of dis-incentivising private sector companies from tendering for State contracts.

This judgement represents a significant departure from the previous position in relation to the presumption in favour of disclosure as it applies to exempt records. The Court of Appeal has effectively decided that individuals making a request under the Act must now demonstrate that a decision to refuse to release a record subject to an exemption is unjustified – flipping the burden of proof.

Interestingly, earlier this month the High Court overturned another decision of the Commissioner in a case involving a decision by the Commissioner to require University College Cork to disclose certain information about a loan agreement with the European Investment Bank. The High Court confirmed "that where a record comes within the terms of one of the statutory exemptions, then no additional justification for non-disclosure is required to be demonstrated" subject to the separate statutory consideration of the public interest.

It is yet to be seen if these two cases will be the subject of an appeal by the Commissioner.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions